SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event
reported) December 19, 1997
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Credit Suisse First Boston Mortgage Securities Corp.
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(Exact Name of Registrant as Specified in Charter)
Delaware 333-25751 13-3320910
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
Eleven Madison Avenue
New York, New York 10010
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(Address of Principal Executive
Offices and Zip Code)
Registrant's telephone number, including area code (212) 325-2000
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Item 5. Other Events
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On December 19, 1997, Credit Suisse First Boston Mortgage Securities
Corp. (the "Company") executed a Pooling and Servicing Agreement dated as of
December 11, 1997 (the "Pooling and Servicing Agreement"), by and among, the
Company, as depositor, First Union National Bank, as servicer (the
"Servicer"), Lennar Partners, Inc., as special servicer, and Norwest Bank
Minnesota, National Association, as trustee (the "Trustee"). The Pooling and
Servicing Agreement is annexed hereto as Exhibit 99.1.
Item 7. Financial Statements, Pro Forma Financial
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Information and Exhibits.
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(a) Not applicable.
(b) Not applicable.
(c) Exhibits:
99.1 The Pooling and Servicing Agreement, dated as of December 11,
1997, by and among, the Company, the Servicer, the Special
Servicer and the Trustee, providing for the issuance of the
Certificates.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.
By: /s/ Allan J. Baum
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Name: Allan J. Baum
Title: Vice President
Dated: January 2, 1998
Exhibit Index
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Exhibit Page
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99.1. Pooling and Servicing Agreement 5
EXECUTION COPY
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
Depositor
FIRST UNION NATIONAL BANK,
Servicer
LENNAR PARTNERS, INC.,
Special Servicer
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of December 11, 1997
$1,465,990,190
Commercial Mortgage Pass-Through Certificates
Series 1997-C2
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms . . . . . . . . . . . . . . 5
SECTION 1.02. Certain Calculations . . . . . . . . . . . . 60
SECTION 1.03. Loan Identification Convention . . . . . . . . . 62
SECTION 1.04. Construction Loan Servicing Account Convention . . . 62
ARTICLE II
CONVEYANCE OF LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Loans . . . . . . . . . . . . 63
SECTION 2.02. Acceptance by Trustee . . . . . . . . . . . 65
SECTION 2.03. Representations, Warranties and Covenants of the Depositor;
Mortgage Loan Seller's Repurchase of Loans for Defects in
Mortgage Files and Breaches of Representations and
Warranties. . . . . . . . . . . . . . . . 67
SECTION 2.04. Execution of Certificates . . . . . . . . . . 69
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
SECTION 3.01. Servicer to Act as Servicer; Special Servicer to Act as
Special Servicer; Administration of the Loans . . . . 70
SECTION 3.02. Collection of Loan Payments . . . . . . . . . . 72
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts . . . . . . . . . . . . . 73
SECTION 3.04. The Certificate Account, Distribution Accounts, Excess
Interest Distribution Account and Yield Protection Payment
Account . . . . . . . . . . . . . . . . . 75
SECTION 3.05. Permitted Withdrawals from the Certificate Account and the
Distribution Accounts . . . . . . . . . . . . 78
SECTION 3.06. Investment of Funds in the Certificate Account, Servicing
Accounts, Cash Collateral Accounts, the Excess Interest
Distribution Account, the Yield Protection Payment Account,
the Interest Reserve Account and the REO Account . . . 82
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage . . . . . . . . . . . . . . 85
SECTION 3.08. Enforcement of Due-On-Sale and Due-On-Encumbrance Clauses;
Assumption Agreements; Defeasance Provisions. . . . . 89
SECTION 3.09. Realization upon Defaulted Loans . . . . . . . . 94
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files . . 97
SECTION 3.11. Servicing Compensation . . . . . . . . . . . 98
SECTION 3.12. Reports to the Trustee; Certificate Account Statements. 103
SECTION 3.13. Annual Statement as to Compliance . . . . . . . 106
SECTION 3.14. Reports by Independent Public Accountants . . . . . 107
SECTION 3.15. Access to Certain Information . . . . . . . . . 107
SECTION 3.16. Title to REO Property; REO Account . . . . . . . 108
SECTION 3.17. Management of REO Property . . . . . . . . . . 109
SECTION 3.18. Sale of Defaulted Loans and REO Properties . . . . . 111
SECTION 3.19. Additional Obligations of the Servicer and Special Servicer;
Inspections; Appraisals . . . . . . . . . . . 113
SECTION 3.20. Modifications, Waivers, Amendments and Consents . . . 116
SECTION 3.21. Transfer of Servicing Between Servicer and Special Servicer;
Record Keeping; Asset Status Report . . . . . . . 120
SECTION 3.22. Sub-Servicing Agreements. . . . . . . . . . . 124
SECTION 3.23. Representations and Warranties of the Servicer . . . 126
SECTION 3.24. Representations and Warranties of the Special Servicer. 128
SECTION 3.25. Construction Loans . . . . . . . . . . . . 130
SECTION 3.26. RESERVED . . . . . . . . . . . . . . . . 141
SECTION 3.27. Limitation on Liability of the Directing
Certificateholder . . . . . . . . . . . . 141
SECTION 3.28. Reports to the Securities and Exchange Commission; Available
Information . . . . . . . . . . . . . . . 142
SECTION 3.29. Lock-Box Accounts and Servicing Accounts . . .. . . 144
SECTION 3.30. Interest Reserve Account . . . . . . . . . . . 145
SECTION 3.31. Limitations on and Authorizations of the Servicer and
Special Servicer with Respect to Certain Loans . . . . 145
SECTION 3.32. REMIC Administration . . . . . . . . . . . . 148
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions . . . . . . . . . . . . . . 152
SECTION 4.02. Statements to Certificateholders; Reports by Trustee; Other
Information Available to the Holders and Others . . . 160
SECTION 4.03. P&I Advances; Yield Protection Payment Advances . . 165
SECTION 4.04. Allocation of Collateral Support Deficit . . . . . 168
SECTION 4.05. Appraisal Reductions . . . . . . . . . . . . 169
SECTION 4.06. Certificate Deferred Interest . . . . . . . . 170
SECTION 4.07. Grantor Trust Reporting . . . . . . . . . . 170
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates . . . . . . . . . . . . . 172
SECTION 5.02. Registration of Transfer and Exchange of Certificates . 174
SECTION 5.03. Book-Entry Certificates . . . . . . . . . . 181
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates . . 183
SECTION 5.05. Persons Deemed Owners . . . . . . . . . . . 184
ARTICLE VI
THE DEPOSITOR, THE
SERVICER AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Servicer and the Special
Servicer . . . . . . . . . . . . . . . . 185
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor, the
Servicer or the Special Servicer . . . . . . . . 185
SECTION 6.03. Limitation on Liability of the Depositor,
the Servicer, the Special Servicer and Others . . . . 185
SECTION 6.04. Depositor, Servicer and Special Servicer Not to Resign. 187
SECTION 6.05. Rights of the Depositor in Respect of the Servicer and the
Special Servicer . . . . . . . . . . . . . 188
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default; Servicer and Special Servicer
Termination. . . . . . . . . . . . . . . 189
SECTION 7.02. Trustee to Act; Appointment of Successor . . . . . 192
SECTION 7.03. Notification to Certificateholders . . . . . . . 193
SECTION 7.04. Waiver of Events of Default . . . . . . . . . 193
SECTION 7.05. Trustee Advances . . . . . . . . . . . . . 194
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee . . . . . . . . . . . . . 195
SECTION 8.02. Certain Matters Affecting the Trustee . . . . . . 196
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of
Certificates or Loans . . . . . . . . . . . . 198
SECTION 8.04. Trustee May Own Certificates . . . . . . . . . 198
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of Trustee 199
SECTION 8.06. Eligibility Requirements for Trustee . . . . . . 199
SECTION 8.07. Resignation and Removal of the Trustee . . . . . . 200
SECTION 8.08. Successor Trustee . . . . . . . . . . . . 201
SECTION 8.09. Merger or Consolidation of Trustee . . . . . . . 202
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee . . . 202
SECTION 8.11. Appointment of Custodians . . . . . . . . . . 203
SECTION 8.12. Access to Certain Information . . . . . . . . 203
SECTION 8.13. Representations and Warranties of the Trustee . . . 206
ARTICLE IX
TERMINATION; PURCHASE OF ARD LOANS
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Loans 208
SECTION 9.02. Additional Termination Requirements . . . . . . . 210
SECTION 9.03. Purchase of ARD Loans. . . . . . . . . . . . 211
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Amendment . . . . . . . . . . . . . . . 212
SECTION 10.02. Recordation of Agreement; Counterparts . . . . . . 214
SECTION 10.03. Limitation on Rights of Certificateholders . . . . . 214
SECTION 10.04. Governing Law . . . . . . . . . . . . . . 215
SECTION 10.05. Notices . . . . . . . . . . . . . . . . 216
SECTION 10.06. Severability of Provisions . . . . . . . . . . 216
SECTION 10.07. Grant of a Security Interest . . . . . . . . . 217
SECTION 10.08. Successors and Assigns; Beneficiaries . . . . . . 217
SECTION 10.09. Article and Section Headings . . . . . . . . . 217
SECTION 10.10. Notices . . . . . . . . . . . . . . . . 217
EXHIBITS
Exhibit A-1 Form of Class A Certificate
Exhibit A-2 (RESERVED)
Exhibit A-3 Form of Class A-X Certificate
Exhibit A-4 Form of Fixed Rate Mezzanine Certificate
Exhibit A-5 Form of Adjustable Rate Certificate
Exhibit A-6 Form of Class V-1 Certificate
Exhibit A-7 Form of Residual Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Investment Representation Letter
Exhibit D-1 Form of Transfer Affidavit
Exhibit D-2 Form of Transferor Letter
Exhibit E (RESERVED)
Exhibit F Form of Request for Release
Exhibit G (RESERVED)
Exhibit H (RESERVED)
Exhibit I-1 Form of Comparative Financial Status Report
Exhibit I-2 Form of Delinquent Loan Status Report
Exhibit I-3 Form of Historical Loan Modification Report
Exhibit I-4 Form of Historical Loss Estimate Report
Exhibit I-5 Form of REO Status Report
Exhibit I-6 Form of Servicer Watch List
Exhibit I-7 Form of Operating Statement Analysis Report
Exhibit J (RESERVED)
Exhibit K Form of Lost Note Affidavit
Exhibit L Yield Protection Payment Percentages for Class A-X
Certificates
Exhibit M Form of Draw Request from CVS Interim Servicing
Agreement
Exhibit N Form of Construction Loan Accounting Reports Pursuant to
Section 3.25(u)
This Pooling and Servicing Agreement (the "Agreement"), is dated and
effective as of December 11, 1997, among Credit Suisse First Boston Mortgage
Securities Corp., as Depositor, First Union National Bank, as Servicer,
Lennar Partners, Inc., as Special Servicer, and Norwest Bank Minnesota,
National Association, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell commercial mortgage pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
multiple classes (each, a "Class"), which in the aggregate will evidence the
entire beneficial ownership interest in the trust fund (the "Trust Fund") to
be created hereunder, the primary assets of which will be a pool of 185
multifamily and commercial mortgage loans (the "Loans"). As provided herein,
the Trustee shall elect or shall cause an election to be made that each of
the Upper-Tier REMIC and the Lower-Tier REMIC (as defined herein) be treated
for federal income tax purposes as a "real estate mortgage investment
conduit" (a "REMIC").
The following table sets forth the designation, the initial pass-through
rate (the "Pass-Through Rate"), the aggregate initial principal amount (the
"Original Certificate Balance") or notional balance ("Original Notional
Balance"), as applicable, and the initial ratings given each Class (as
indicated below) by the Rating Agencies (as defined herein) for each class of
certificates comprising the interests in the Upper-Tier REMIC created
hereunder:
UPPER-TIER REMIC
<TABLE>
<CAPTION>
Original
Certificate Balance
(or, in the case of the
Class Initial
A-X Certificates, Ratings/(1)/
Class Original Fitch/Moody's
Designation Pass-Through Rate Notional Balance) /S&P
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<S> <C> <C> <C>
Class A-1 6.40% $ 151,212,000 AAA/Aaa/AAA
Class A-2 6.52% $ 322,346,000 AAA/Aaa/AAA
Class A-3 6.55% $ 523,315,000 AAA/AAa/AAA
Class A-X (2) $ 1,465,990,190(3) AAA/Aaa/NR
Class B 6.72% $ 95,289,000 AA/Aa2/NR
Class C 6.85% $ 80,630,000 A/A2/NR
Class D 7.27% $ 95,289,000 BBB-/Baa2/NR
Class E 7.46% $ 25,655,000 NR/Baa3/NR
Class F (4) $ 73,299,000 BB/NR/NR
Class G (4) $ 14,660,000 BB-/NR/NR
Class H (4) $ 29,320,000 B/B2/NR
Class I (4) $ 14,660,000 B-/B3/NR
Class J (4) $ 40,315,190 NR/NR/NR
Class R None(5) None(5) NA
</TABLE>
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(1) The Certificates marked "NR" have not been rated by the applicable
Rating Agency.
(2) The Class A-X Pass-Through Rate, as defined herein.
(3) Original Notional Balance. The Class A-X Certificates will not have a
Certificate Balance and will not be entitled to receive distributions of
principal.
(4) The Pass-Through Rates on the Class F, Class G, Class H, Class I and
Class J Certificates will equal the lesser of 7.46% and the Weighted
Average Net Mortgage Rate.
(5) The Class R Certificates will not have a Certificate Balance or notional
balance, do not bear interest and will not be entitled to distributions
of Prepayment Premiums or Yield Maintenance Charges. Any Available
Distribution Amount remaining in the Upper-Tier Distribution Account,
after all required distributions under this Agreement have been made to
each other Class of Certificates, will be distributed to the Holders of
the Class R Certificates.
The Class A-1, Class A-2, Class A-3, Class A-X, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class I, and Class J
Certificates (in each case, excluding the right to receive Yield Protection
Payments) will evidence "regular interests" in the Upper-Tier REMIC created
hereunder. The sole Class of "residual interests" in the Upper-Tier REMIC
created hereunder will be evidenced by the Class R Certificates. The
Class LA-1, Class LA-2, Class LA-3, Class LB, Class LC, Class LD, Class LE,
Class LF, Class LG, Class LH, Class LI and Class LJ Uncertificated Interests
(in each case, excluding the right to receive Yield Protection Payments) will
evidence "regular interests" in the Lower-Tier REMIC created hereunder. The
sole Class of "residual interests" in the Lower-Tier REMIC created hereunder
will be evidenced by the Class LR Certificates.
The following table sets forth the initial Lower-Tier Principal Amounts
and per annum rates of interest for the Uncertificated Lower-Tier Interests:
LOWER-TIER REMIC
<TABLE>
<CAPTION>
Class Interest Rate Original Lower-Tier Principal
----- ------------- -----------------------------
<S> <C> <C>
Class LA-1 (1) $151,212,000
Class LA-2 (1) $322,346,000
Class LA-3 (1) $523,315,000
Class LB (1) $ 95,289,000
Class LC (1) $ 80,630,000
Class LD (1) $ 95,289,000
Class LE (1) $ 25,655,000
Class LF (1) $ 73,299,000
Class LG (1) $ 14,660,000
Class LH (1) $ 29,320,000
Class LI (1) $ 14,660,000
Class LJ (1) $ 40,315,190
Class LR None(2) None(2)
</TABLE>
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(1) The interest rate of each of the indicated classes of Uncertificated
Lower-Tier Interests is the Weighted Average Net Mortgage Rate.
(2) The Class LR Certificates do not have a Certificate Balance or
notional balance, do not bear interest and will not be entitled to
distributions of Prepayment Premiums, Yield Maintenance Charges or
Yield Protection Payments. Any Available Distribution Amount
remaining in the Lower-Tier Distribution Account after distributing
the Lower-Tier Distribution Amount on each Distribution Date shall
be distributed to the Holders of the Class LR Certificates.
The parties intend that (i) the portion of the Trust Fund representing
Excess Interest, the Excess Interest Distribution Account, Yield Protection
Payments and the Yield Protection Payment Account will be treated as a
grantor trust under Subpart E of Part 1 of Subchapter J of Chapter 1 of
Subtitle A of the Code, (ii) the Class V-1 Certificates will represent
undivided beneficial interests in the portion of the Trust Fund consisting of
Excess Interest and the Excess Interest Distribution Account and (iii) the
Class A-X Certificates and any other Class of Regular Certificates that
receives payment of an Additional Collateral Prepayment Amount will represent
undivided beneficial interests in the portion of the Trust Fund consisting of
Yield Protection Payments and the Yield Protection Payment Account.
As of the close of business on the Cut-off Date (as defined herein), the
Loans had an aggregate principal balance, after application of all payments
of principal due on or before such date, whether or not received, equal to
$1,465,990,190.
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, the Special Servicer and the Trustee agree as
follows:
ARTICLE I
DEFINITIONS
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SECTION 1.01. Defined Terms.
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Whenever used in this Agreement the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article.
"Accrued Certificate Interest Amount": With respect to each
Distribution Date and each Class of Regular Certificates, an amount equal to
interest for the related Interest Accrual Period at the Pass-Through Rate
applicable to such Class of Certificates for such Distribution Date, accrued
on the related Certificate Balance of such Class (or, in the case of the
Class A-X Certificates, on the Notional Balance thereof) immediately prior to
such Distribution Date, commencing in the month of the Closing Date. The
Accrued Certificate Interest Amount for each such Class shall be calculated
on the basis of a 360-day year composed of twelve 30-day months.
"Accountant's Statement": As defined in Section 3.14.
"Acquisition Date": With respect to any REO Property, the first day on
which such REO Property is considered to be acquired by the Trust Fund and
the Lower-Tier REMIC within the meaning of Treasury regulation section 1.856-
6(b)(1), which is the first day on which the Lower-Tier REMIC is treated as
the owner of such REO Property for federal income tax purposes.
"Actual/360 Loans": The Loans indicated by the term "Act/360" under the
column heading "Interest Calc." in the Mortgage Loan Schedule.
"Additional Collateral": With respect to each Additional Collateral
Loan, a cash reserve or irrevocable letter of credit partially securing such
Additional Collateral Loan.
"Additional Collateral Loan": Any one of the Loans designated as Loan
Nos. 8, 11 and 15 in the Mortgage Loan Schedule.
"Additional Collateral Prepayment Amount": As to any Distribution Date
and any Additional Collateral Loan, the amount of the related Additional
Collateral paid as a Principal Prepayment on such Additional Collateral Loan
during the related Due Period in connection with the related Borrower's
failure to satisfy the conditions relating to the payment of such Additional
Collateral to such Borrower (other than by reason of an event of default
under such Additional Collateral Loan).
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 3.32.
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent": As defined in Section 5.02(d)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Allocated Loan Amount": With respect to each Mortgaged Property, the
portion of the principal amount of the related Loan allocated to such
Mortgaged Property in the applicable Mortgage or Loan Agreement.
"Annual Compliance Report": A report consisting of an annual statement
of compliance required by Section 3.13 hereof and an annual report of an
Independent accountant required pursuant to Section 3.14 hereof.
"Anticipated Repayment Date": With respect to any ARD Loan, designated
as such on the Mortgage Loan Schedule, the date upon which such ARD Loan
starts to accrue interest at its Revised Rate.
"Appraisal": An appraisal prepared in accordance with 12 C.F.R.
Section225.64 by an Appraiser selected by the Servicer or Special Servicer,
as applicable.
"Appraisal Reduction": For any Distribution Date and for any Loan as to
which an Appraisal Reduction Event has occurred, an amount calculated by the
Special Servicer equal to the excess, if any, of (a) the Stated Principal
Balance of such Loan over (b) the excess of (i) 90% of the Appraised Value of
the related Mortgaged Property as determined (a) by one or more Appraisals
with respect to any Loan with an outstanding principal balance equal to or in
excess of $2,000,000 (the costs of which shall be paid by the Servicer as a
Servicing Advance) or (b) by an Appraisal (or an update of a prior Appraisal)
or an internal valuation performed by the Special Servicer with respect to
any Loan with an outstanding principal balance less than $2,000,000 over
(ii) the sum of (x) to the extent not previously advanced by the Servicer or
the Trustee, all unpaid interest on such Loan at a per annum rate equal to
its Mortgage Rate, (y) all unreimbursed Advances and interest thereon at the
Reimbursement Rate in respect of such Loan and (z) all currently due and
unpaid real estate taxes and assessments, Insurance Policy premiums, ground
rents and all other amounts due and unpaid with respect to such Loan, net of
any amounts currently escrowed for such amounts (which taxes, assessments,
premiums, ground rents and other amounts have not been subject to an Advance
by the Servicer or the Trustee and/or for which funds have not been
escrowed).
Notwithstanding anything herein to the contrary, the aggregate Appraisal
Reduction related to a Loan or the related REO Property will be reduced to
zero as of the date such Loan is paid in full, liquidated, repurchased or
otherwise removed from the Trust Fund.
"Appraisal Reduction Amount": With respect to any Distribution Date and
any Loan for which an Appraisal Reduction has been calculated, an amount
equal to the product of (i) the Reduction Rate for such Distribution Date and
(ii) the Appraisal Reduction with respect to such Loan.
"Appraisal Reduction Event": With respect to any Loan, the earliest of
(i) the third anniversary of the date on which the first extension of the
Maturity Date of such Loan becomes effective as a result of a modification of
such Loan by the Special Servicer pursuant to the terms hereof, which
extension does not decrease the aggregate amount of Monthly Payments on the
Loan, (ii) 120 days after an uncured delinquency (without regard to the
application of any grace period) occurs in respect of such Loan, (iii) the
date on which a reduction in the amount of Monthly Payments on such Loan, or
a change in any other material economic term of such Loan (other than an
extension of the Maturity Date), becomes effective as a result of a
modification of such Loan by the Special Servicer, (iv) 60 days after a
receiver has been appointed, (v) 60 days after a Mortgagor declares
bankruptcy or has become the subject of a decree or order for a bankruptcy
proceeding (other than the bankruptcy proceedings with respect to the
Mortgagor under Loan No. 29 or the Mortgagor under Loan No. 46 during the
period in which each of them is involved in the bankruptcy proceedings to
which they were subject on the Cut-off Date) that shall have remained in
force undischarged or unstayed, and (vi) immediately after a Loan becomes an
REO Loan; provided, however, that an Appraisal Reduction Event shall not occur
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at any time when the aggregate Certificate Balances of all Classes of
Certificates (other than the Class A Certificates) have been reduced to
zero. The Special Servicer shall notify the Servicer promptly upon the
occurrence of any of the foregoing events.
"Appraised Value": With respect to any Mortgaged Property, the
appraised value thereof as determined by an Appraisal of the Mortgaged
Property securing such Loan.
"Appraiser": An Independent nationally recognized MAI, state certified
organization with five years of experience in properties of like kind and in
the same geographic area.
"ARD Loan": A Loan that is designated as such on the Mortgage Loan
Schedule.
"Asset Status Report": As defined in Section 3.21(e).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar instrument, executed by
the related Mortgagor, assigning to the related mortgagee all of the income,
rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of such Mortgaged Property, in the form which
was duly executed, acknowledged and delivered, as amended, modified, renewed
or extended through the date hereof and from time to time hereafter.
"Assumed Scheduled Payment": For any Due Period and with respect to any
Loan that is delinquent in respect of its Balloon Payment (including any REO
Loan as to which the Balloon Payment would have been past due), an amount
equal to the sum of (a) the principal portion of the Monthly Payment that
would have been due on such Loan on the related Due Date based on the
constant payment required by the related Note or the original amortization
schedule thereof (as calculated with interest at the related Mortgage Rate),
if applicable, assuming such Balloon Payment had not become due, after giving
effect to any modification of such Loan, and (b) interest on the Stated
Principal Balance of such Loan at the applicable Net Mortgage Rate (net of
interest at the Servicing Fee Rate).
"Authenticating Agent": Any agent of the Trustee appointed to act as
Authenticating Agent pursuant to Section 5.01.
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to the sum (without duplication) of:
(a) the aggregate amount received on the Loans (and any related REO
Properties) and on deposit in the Certificate Account and the Lower-Tier
Distribution Account as of the close of business on the Business Day
preceding the related Servicer Remittance Date (including funds released from
the Interest Reserve Account for distribution on such Distribution Date),
exclusive of the following amounts:
(i) all Monthly Payments collected but due on a Due Date following the
end of the related Due Period;
(ii) all Principal Prepayments, Balloon Payments, Liquidation
Proceeds or Insurance and Condemnation Proceeds and other
unscheduled recoveries received or deemed received subsequent to
the related Determination Date;
(iii) all amounts in the Certificate Account that are payable or
reimbursable to any Person from such account pursuant to clauses
(ii) through (xvii), inclusive, of Section 3.05(a);
(iv) all amounts in the Lower-Tier Distribution Account that are
payable or reimbursable to any Person from such account pursuant
to clauses (ii) through (iv), inclusive, of Section 3.05(b);
(v) all Prepayment Premiums, Yield Maintenance Charges and Yield
Protection Payments;
(vi) all amounts deposited in the Certificate Account or the Lower-
Tier Distribution Account, as the case may be, in error;
(vii) any net interest or net investment income on funds on deposit in
the Certificate Account, the Excess Interest Distribution
Account, the Yield Protection Payment Account, the Interest
Reserve Account, any Cash Collateral Account, any Lock-Box
Account, any Reserve Account or any REO Account or in Permitted
Investments in which such funds may be invested;
(viii) with respect to those Loans that are Actual/360 Loans and any
Distribution Date relating to each Interest Accrual Period
ending in each February or any January in a year immediately
preceding a year which is not a leap year, an amount equal to
one day of interest on the Stated Principal Balance of such
Loans as of the Due Date in the month preceding the month in
which such Distribution Date occurs at the related Mortgage
Rates to the extent such amount is to be deposited in the
Interest Reserve Account and held for future distribution
pursuant to Section 3.30; and
(ix) Excess Interest.
(b) if and to the extent not already included in clause (a) hereof, the
aggregate amount transferred with respect to the Loans from the REO Account
to the Certificate Account for such Distribution Date pursuant to
Section 3.16(c); and
(c) the aggregate amount of any P&I Advances made in respect of the
Loans by the Servicer or the Trustee, as applicable, for such Distribution
Date pursuant to Section 4.03 or 7.05 (net of the related Trustee Fee with
respect to any such Loans as to which such P&I Advances are made).
"Balloon Loan": Any Loan that by its original terms or by virtue of any
modification entered into as of the Closing Date provides for an amortization
schedule extending beyond its Maturity Date.
"Balloon Payment": With respect to any Balloon Loan and any date of
determination, the scheduled payment of principal due on the Maturity Date of
such Loan (less principal included in the applicable amortization schedule or
scheduled Monthly Payment).
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time to
time (Title 11 of the United States Code).
"Bankruptcy Event: As defined in Section 3.08(a)(v)(G).
"Base Interest Fraction": With respect to any Principal Prepayment on
any Loan and with respect to any of the Class A, Class B, Class C, Class D
and Class E Certificates, a fraction (a) whose numerator is the amount, if
any, by which (i) the Pass-Through Rate on such Class of Certificates exceeds
(ii) the Yield Rate used in calculating the Yield Maintenance Charge with
respect to such Principal Prepayment and (b) whose denominator is the amount,
if any, by which the (i) Mortgage Rate on such Loan exceeds (ii) the Yield
Rate used in calculating the Yield Maintenance Charge with respect to such
Principal Prepayment; provided, however, that under no circumstances shall the
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Base Interest Fraction be greater than one, and provided further that if
such Yield Rate is greater than or equal to the lesser of (x) the Mortgage
Rate on such Loan and (y) the Pass-Through Rate described in clause (a)(i)
above, then the Base Interest Fraction shall equal zero.
"Book-Entry Certificate": Any Certificate registered in the name of the
Depository or its nominee.
"Borrower": With respect to any Loan, any obligor or obligors on any
related Note or Notes.
"Breach": As defined in Section 2.03(b).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in the State of Florida, New York, Minnesota,
Maryland or North Carolina are authorized or obligated by law or executive
order to remain closed.
"Cash Collateral Account": With respect to any Loan that has a Lock-Box
Account, any account or accounts created pursuant to the related Mortgage,
Loan Agreement, Cash Collateral Account Agreement or other loan document,
into which account or accounts the Lock-Box Account monies are swept on a
regular basis for the benefit of the Trustee as successor to the Mortgage
Loan Seller's interest in the Loans. Any Cash Collateral Account shall be
beneficially owned for federal income tax purposes by the Person who is
entitled to receive all reinvestment income or gain thereon in accordance
with the terms and provisions of the related Loan and Section 3.06, which
Person shall be taxed on all reinvestment income or gain thereon. The
Servicer shall be permitted to make withdrawals therefrom solely for deposit
into the Certificate Account. To the extent not inconsistent with the terms
of the related Loan, each such Cash Collateral Account shall be an Eligible
Account.
"Cash Collateral Account Agreement": With respect to any Loan, the cash
collateral account agreement, if any, between the Originator and the related
Borrower, pursuant to which the related Cash Collateral Account, if any, may
have been established.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series 1997-
C2, as executed and delivered by the Certificate Registrar and authenticated
and delivered hereunder by the Authenticating Agent.
"Certificate Account": The custodial account or accounts created and
maintained by the Servicer pursuant to Section 3.04(a) in the name of the
Trustee on behalf of the Certificateholders, into which the amounts set forth
in Section 3.04(a) shall be deposited directly, which account shall be
entitled "First Union National Bank, in trust for Norwest Bank Minnesota,
National Association, as Trustee for the benefit of Holders of Credit Suisse
First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1997-C2, Certificate Account". Any such account or
accounts shall be an Eligible Account and shall be part of the Lower-Tier
REMIC.
"Certificate Balance": With respect to any Class of Regular
Certificates (other than the Class A-X Certificates), (i) on or prior to the
first Distribution Date, an amount equal to the Original Certificate Balance
of such Class as specified in the Preliminary Statement hereto, and (ii) as
of any date of determination after the first Distribution Date, the
Certificate Balance of such Class on the Distribution Date immediately prior
to such date of determination (determined as adjusted pursuant to
Section 1.02(a)(iii)).
"Certificate Deferred Interest": For any Distribution Date with respect
to any Class of Certificates, the amount of Mortgage Deferred Interest
allocated to such Class pursuant to Section 4.06(a).
"Certificateholder" or "Holder": The Person in whose name a Certificate
is registered in the Certificate Register, provided, however, that solely for
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the purposes of giving any consent, approval or waiver pursuant to this
Agreement, any Certificate registered in the name of the Servicer, the
Special Servicer, the Depositor or any Affiliate of any of them shall be
deemed not to be outstanding, and the Voting Rights to which it is entitled
shall not be taken into account in determining whether the requisite
percentage of Voting Rights necessary to effect any such consent, approval or
waiver has been obtained, if such consent, approval or waiver sought from
such party would in any way increase its compensation or limit its
obligations as Servicer, Special Servicer or Depositor, as applicable,
hereunder; provided, however, the Servicer and Special Servicer shall be
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entitled to exercise such Voting Rights with respect to any issue which could
reasonably be believed to adversely affect such party's compensation or
increase its obligations or liabilities hereunder; and provided further,
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however, that such restrictions will not apply to the exercise of the Special
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Servicer's rights as a member of the Controlling Class. The Trustee shall be
entitled to request and conclusively rely upon a certificate of the Servicer,
the Special Servicer or the Depositor in determining whether a Certificate is
registered in the name of an Affiliate of such Person. All references herein
to "Holders" or "Certificateholders" shall reflect the rights of Certificate
Owners as they may indirectly exercise such rights through the Depository and
the Depository Participants, except as otherwise specified herein; provided,
--------
however, that the parties hereto shall be required to recognize as a "Holder"
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or "Certificateholder" only the Person in whose name a Certificate is
registered in the Certificate Register.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the
books of the Depository or on the books of a Depository Participant or on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Change Order": As defined in Section 3.25(h).
"Class": With respect to any Certificates or Uncertificated Lower-Tier
Interests, all of the Certificates or Uncertificated Lower-Tier Interests
bearing the same alphabetical (and, if applicable, numerical)
Class designation.
"Class A Certificate": Any Class A-1, Class A-2 or Class A-3
Certificate.
"Class A-1 Certificate": A Certificate designated as "Class A-1" on the
face thereof, substantially in the form of Exhibit A-1 hereto.
"Class A-1 Pass-Through Rate": 6.40% per annum.
"Class A-2 Certificate": A Certificate designated as "Class A-2" on the
face thereof, substantially in the form of Exhibit A-1 hereto.
"Class A-2 Pass-Through Rate": 6.52% per annum.
"Class A-3 Certificate": A Certificate designated as "Class A-3" on the
face thereof, substantially in the form of Exhibit A-1 hereto.
"Class A-3 Pass-Through Rate": 6.55% per annum.
"Class A-X Certificate": A Certificate designated as "Class A-X" on the
face thereof, in the form of Exhibit A-3 hereto.
"Class A-X Pass-Through Rate": As to any Distribution Date, the per
annum rate, expressed as a percentage, obtained by dividing (i) the sum of
the products of (a) the principal balance of each class of Uncertificated
Lower-Tier Interests immediately prior to such Distribution Date and (b) the
related Component Rate for such Distribution Date by (ii) the sum of all such
principal balances.
"Class A-X Yield Protection Payment Amount": As defined in the
definition of Yield Protection Payment.
"Class B Certificate": A Certificate designated as "Class B" on the
face thereof, in the form of Exhibit A-4 hereto.
"Class B Pass-Through Rate": 6.72% per annum.
"Class C Certificate": A Certificate designated as "Class C" on the
face thereof, in the form of Exhibit A-4 hereto.
"Class C Pass-Through Rate": 6.85% per annum.
"Class D Certificate": A Certificate designated as "Class D" on the
face thereof, in the form of Exhibit A-4 hereto.
"Class D Pass-Through Rate": 7.27% per annum.
"Class E Certificate": A Certificate designated as "Class E" on the
face thereof, in the form of Exhibit A-4 hereto.
"Class E Pass-Through Rate": 7.46% per annum.
"Class F Certificate": A Certificate designated as "Class F" on the
face thereof, in the form of Exhibit A-5 hereto.
"Class F Pass-Through Rate": As to any Distribution Date, a per annum
rate equal to the lesser of (i) 7.46% per annum and (ii) the Weighted
Average Net Mortgage Rate for such Distribution Date.
"Class G Certificate": A Certificate designated as "Class G" on the
face thereof, in the form of Exhibit A-5 hereto.
"Class G Pass-Through Rate": As to any Distribution Date, a per annum
rate equal to the lesser of (i) 7.46% per annum and (ii) the Weighted
Average Net Mortgage Rate for such Distribution Date.
"Class H Certificate": A Certificate designated as "Class H" on the
face thereof, in the form of Exhibit A-5 hereto.
"Class H Pass-Through Rate": As to any Distribution Date, a per annum
rate equal to the lesser of (i) 7.46% per annum and (ii) the Weighted
Average Net Mortgage Rate for such Distribution Date.
"Class I Certificate": A Certificate designated as "Class I" on the
face thereof, in the form of Exhibit A-5 hereto.
"Class I Pass-Through Rate": As to any Distribution Date, a per annum
rate equal to the lesser of (i) 7.46% per annum and (ii) the Weighted
Average Net Mortgage Rate for such Distribution Date.
"Class J Certificate": A Certificate designated as "Class J" on the
face thereof, in the form of Exhibit A-5 hereto.
"Class J Pass-Through Rate": As to any Distribution Date, a per annum
rate equal to the lesser of (i) 7.46% per annum and (ii) the Weighted
Average Net Mortgage Rate for such Distribution Date.
"Class LA-1 Uncertificated Interest": A regular interest in the Lower-
Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LA-2 Uncertificated Interest": A regular interest in the Lower-
Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LA-3 Uncertificated Interest": A regular interest in the Lower-
Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LB Uncertificated Interest": A regular interest in the Lower-
Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LC Uncertificated Interest": A regular interest in the Lower-
Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LD Uncertificated Interest": A regular interest in the Lower-
Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LE Uncertificated Interest": A regular interest in the Lower-
Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LF Uncertificated Interest": A regular interest in the Lower-
Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LG Uncertificated Interest": A regular interest in the Lower-
Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LH Uncertificated Interest": A regular interest in the Lower-
Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LI Uncertificated Interest": A regular interest in the Lower-
Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LJ Uncertificated Interest": A regular interest in the Lower-
Tier REMIC which is held as an asset of the Upper-Tier REMIC and having the
Original Lower-Tier Principal Amount and per annum rate of interest set forth
in the Preliminary Statement hereto.
"Class LR Certificate": A Certificate designated as "Class LR" on the
face thereof, in the form of Exhibit A-7 hereto.
"Class R Certificate": A Certificate designated as "Class R" on the
face thereof, in the form of Exhibit A-7 hereto.
"Class V-1 Certificate": A Certificate designated as "Class V-1" on the
face thereof, in the form of Exhibit A-6 hereto. The V-1 Certificates have
no Pass-Through Rate, Certificate Balance or notional balance.
"Closing Date": December 19, 1997.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, and applicable final or temporary regulations of the U.S. Department of
the Treasury issued pursuant thereto.
"Collateral Support Deficit": As defined in Section 4.04.
"Commission": The Securities and Exchange Commission.
"Comparative Financial Status Report": A report substantially
containing the information described in Exhibit I-1 attached hereto, setting
forth, among other things, the occupancy, revenue, net operating income and
Debt Service Coverage Ratio for each Loan based on the most current financial
information received as of the Determination Date immediately preceding the
preparation of such report for each of the following three periods (to the
extent such information is available): (i) the most current available year
to date, (ii) the previous two full fiscal years and (iii) the "base year"
(representing the original analysis of information used as of the Cut-off
Date). For the purposes of the Servicer's production of any such report that
is required to state information for any period prior to the Cut-off Date,
the Servicer may conclusively rely (without independent verification), absent
manifest error, on information provided to it by the Mortgage Loan Seller.
"Component Rate": As to each of the Class A-X Components, the rate set
forth below with respect thereto:
Class LA-1 Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class A-1
Pass-Through Rate.
Class LA-2 Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class A-2
Pass-Through Rate.
Class LA-3 Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class A-3
Pass-Through Rate.
Class LB Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class B
Pass-Through Rate.
Class LC Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class C
Pass-Through Rate.
Class LD Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class D
Pass-Through Rate.
Class LE Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class E
Pass-Through Rate.
Class LF Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class F
Pass-Through Rate for such Distribution
Date.
Class LG Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class G
Pass-Through Rate for such Distribution
Date.
Class LH Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class H
Pass-Through Rate for such Distribution
Date.
Class LI Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class I
Pass-Through Rate for such Distribution
Date.
Class LJ Component: The amount, if any, by which the Weighted
Average Net Mortgage Rate for such
Distribution Date exceeds the Class J
Pass-Through Rate for such Distribution
Date.
"Construction Borrower": With respect to any Construction Loan, the
obligor on the related Note.
"Construction Budget": With respect to any Construction Loan, that
portion of the budget for the construction of the CVS Improvements on the
related Mortgaged Property that is allocated to the construction of the CVS
Store to be built as part of such CVS Improvements and specifically not
including any land acquisition costs, site improvement costs, Loan closing
costs, soft costs or the Construction Loan Interest Reserve.
"Construction Developer": With respect to any Construction Loan, the
developer chosen by the related Construction Borrower or by CVS to develop
and construct CVS Improvements on the Mortgaged Property securing such
Construction Loan.
"Construction Funding Sub-Account": With respect to any Construction
Loan, the sub-account created pursuant to Section 3.25(r).
"Construction Lender": With respect to any Construction Loan, the
original lender making such Construction Loan to a Construction Borrower or,
if applicable, the Trustee, on behalf of the Trust Fund, as assignee of such
lender's interest in such Construction Loan.
"Construction Loan": Any one of Loan Nos. 122, 127, 133, 135, 141, 142,
145, 148, 149, 155, 156, 158, 160, 161, 162, 164, 168 or 169.
"Construction Loan Excess Funds": As defined in Section 3.25(k).
"Construction Loan Interest Reserve": With respect to any Construction
Loan, the funds designated by the Construction Lender for allocation to the
related Construction Loan Interest Reserve Sub-Account and intended for the
purpose of funding the required debt service set forth in the related CSFB
Construction Loan Agreement and Note for the period commencing with the
closing of such Construction Loan and ending on (and including) the Due Date
immediately succeeding the related Date of Rent Commencement.
"Construction Loan Interest Reserve Sub-Account": With respect to any
Construction Loan, the sub-account created pursuant to Section 3.25(q).
"Construction Loan Lease": With respect to any Construction Loan, the
related "Lease" (as defined in the related CSFB Construction Loan Agreement).
"Construction Loan Phase": With respect to any Construction Loan, the
period between (a) the closing of such Construction Loan and (b) the earlier
of (i) the Substantial Completion of construction of the CVS Improvements on
the Mortgaged Property securing such Construction Loan and (ii) the related
Date of Rent Commencement.
"Construction Loan Processing Fees": With respect to any Construction
Loan, all commercially reasonable amounts received from the Construction
Borrower for processing a loan modification, extension, assumption, demand,
beneficiary statement, UCC filings, insurance claim or other loan service
transaction, but not including any prepayment premiums.
"Construction Loan Servicing Account": The account created and
maintained by the Servicer pursuant to Section 3.25(m).
"Construction Loan Servicing Fee": With respect to the Permanent Loan
Phase of each Construction Loan, an annual fee of $750.00, payable monthly at
$62.50.
"Construction Loan Status Report": Any of the reports required to be
prepared and/or delivered by the Servicer pursuant to Section 3.25(u).
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates then outstanding that has a
Certificate Balance at least equal to 25% of the initial Certificate Balance
of such Class (or, if no such Class exists, the most subordinate Class then
outstanding). For purposes of determining, at any time, which Class is the
Controlling Class, the Certificate Balance of each Class shall be deemed to
be reduced by the amount allocated to such Class of any Appraisal Reductions
relating to Loans as to which Liquidation Proceeds or other final payment has
not yet been received. As of the Closing Date, the Controlling Class will be
the Class J Certificates.
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified
by the Certificate Registrar to the Trustee from time to time.
"Corporate Trust Office": The principal corporate trust office of the
Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of
the execution of this Agreement is located at Norwest Bank Minnesota,
National Association, 11000 Broken Land Parkway, Columbia, Maryland 21044-
3562, Credit Suisse First Boston Mortgage Securities Corp., Series 1997-C2
(telecopy number (410) 884-2360).
"Corrected Loan": Any Specially Serviced Loan that has become current
and remained current for three consecutive Monthly Payments (for such
purposes taking into account any modification or amendment of such Loan) and
as to which Loan the Special Servicer has returned servicing to the Servicer
pursuant to Section 3.21(a) (provided that no additional Servicing Transfer
Event was foreseeable in the reasonable judgment of the Special Servicer).
"Credit File": Any documents, other than documents required to be part
of the related Mortgage File, in the possession of the Servicer and relating
to the origination and servicing of any Loan.
"Credit Support Crossover Date": The Distribution Date on which (i) the
Certificate Balance of the last outstanding Class of Subordinate Certificates
has been reduced to zero and (ii) the Certificate Balance of at least one
Class of Class A-1 Certificates is greater than zero.
"Crossed Loan": Any Loan which is cross-defaulted and cross-
collateralized with any other Loan.
"CSFB Construction Loan Agreement": With respect to each Construction
Loan, that certain loan agreement by and between the Mortgage Loan Seller and
the related Construction Borrower, pursuant to which such Construction Loan
was made.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files,
which Person shall not be the Depositor or the Mortgage Loan Seller or an
Affiliate of either of them.
"Cut-off Date": December 11, 1997.
"Cut-off Date Principal Balance": With respect to any Loan, the
outstanding principal balance of such Loan as of the Cut-off Date, after
application of all payments of principal due on or before such date, whether
or not received.
"CVS": CVS Corporation, a Delaware corporation, and its successors and
assigns.
"CVS Improvements": The building and improvements constructed on a
Mortgaged Property securing a Construction Loan.
"CVS Interim Servicing Agreement": The interim servicing agreement
dated July 17, 1997, between Credit Suisse First Boston Mortgage Capital LLC
and GE Capital Loan Services, Inc. (formerly known as GE Capital Asset
Management Corporation), as interim servicer.
"CVS Project Manager": With respect to any Construction Loan, the person
designated by CVS as having approval authority for the Project Plans and
Specifications, budgets, Draw Requests and Change Orders relating to such
Construction Loan.
"CVS Store": With respect to any Construction Loan, the CVS drug store
constructed on the related Mortgaged Property.
"Date of Rent Commencement": With respect to any Construction Loan, the
date identified as such in the related Construction Loan Lease.
"Debt Service Coverage Ratio": With respect to any Loan for any twelve-
month period covered by an annual operating statement for the related
Mortgaged Property, the ratio of (i) Net Operating Income produced by the
related Mortgaged Property during such period to (ii) the aggregate amount of
Monthly Payments (other than any Balloon Payment) due under such Loan during
such period; provided, however, that with respect to the Loans which initially
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pay interest only, the related Monthly Payment will be calculated (for
purposes of this definition only) to include principal (based upon a 25-
year amortization schedule) and interest payments from origination.
"Default Interest": With respect to any Loan, interest accrued on such
Loan at the excess of (i) the related Default Rate over (ii) the sum of the
related Mortgage Rate and, if applicable, the related Excess Rate.
"Default Rate": With respect to each Loan, the per annum rate at which
interest accrues on such Loan following any event of default on such Loan,
including a default in the payment of a Monthly Payment or a Balloon Payment,
as such rate is set forth on the Mortgage Loan Schedule.
"Defaulted Loan": A Loan that is at least sixty days delinquent in
respect of its Monthly Payments or more than thirty days delinquent in
respect of its Balloon Payment, if any, such delinquency to be determined in
either case without giving effect to any grace period permitted by the
related Mortgage or Note and without regard to any acceleration of payments
under the related Mortgage and Note; provided, however, no Monthly Payment
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(other than a Balloon Payment) shall be deemed delinquent if less than ten
dollars of all amounts due and payable on such Loan has not been received.
"Defaulting Party": As defined in Section 7.01(b).
"Defect": As defined in Section 2.02(e).
"Deficient Valuation": With respect to any Loan, a valuation by a court
of competent jurisdiction of the Mortgaged Property in an amount less than
the then outstanding principal balance of the Loan, which valuation results
from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": As defined in Section 5.01(a).
"Delinquent Loan Status Report": A report substantially containing the
information described in Exhibit I-2 attached hereto, setting forth, among
other things, a list of those Loans that, as of the close of business on the
Determination Date immediately preceding the preparation of such report, were
delinquent 30 to 59 days, delinquent 60 to 89 days, delinquent 90 days or
more, or current but Specially Serviced Loans or that were in foreclosure but
were not REO Loans. The Servicer shall not include on the Delinquent Loan
Status Report any Loan that has not been delinquent at least one month after
the related Due Date unless such Loan is a Specially Serviced Loan.
"Denomination": As defined in Section 5.01(a).
"Depositor": Credit Suisse First Boston Mortgage Securities Corp., a
Delaware corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository for purposes of
registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of
New York and a "clearing agency" registered pursuant to the provisions of
Section 17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the close
of business on the 11th day of the month in which such Distribution Date
occurs, or if such 11th day is not a Business Day, the immediately succeeding
Business Day.
"Directing Certificateholder": The Controlling Class Certificateholder
selected by the Holders of more than 50% of the Percentage Interests in the
Controlling Class, by Certificate Balance, as certified by the Certificate
Registrar from time to time; provided, however, that (i) absent such
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selection, or (ii) until a Directing Certificateholder is so selected or
(iii) upon receipt of a notice from the Holders of more than 50% of the
Percentage Interests in the Controlling Class, by Certificate Balance, that
a Directing Certificateholder is no longer designated, the Controlling Class
Certificateholder that beneficially owns the largest aggregate Certificate
Balance of the Controlling Class will be the Directing Certificateholder.
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale to
customers, the performance of any construction work thereon or any use of
such REO Property in a trade or business conducted by the Trust Fund other
than through an Independent Contractor; provided, however, that the Trustee
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(or the Servicer or the Special Servicer on behalf of the Trustee) shall
not be considered to Directly Operate an REO Property solely because the
Trustee (or the Servicer or the Special Servicer on behalf of the Trustee)
establishes rental terms, chooses tenants, enters into or renews leases,
deals with taxes and insurance or makes decisions as to repairs or capital
expenditures with respect to such REO Property.
"Discount Rate": The rate that, when compounded monthly, is equivalent
to the Treasury Rate when compounded semi-annually, plus, if required under
the related Loan, the number of basis points set forth in the related Note to
be added to the discount rate calculable pursuant to such Note when
calculating the related yield maintenance charge.
"Disqualified Organization": Any of (i) the United States, any State or
political subdivision thereof, any possession of the United States or any
agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject
to tax and a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization
or any agency or instrumentality of any of the foregoing, (iii) any
organization (other than certain farmers' cooperatives described in
Section 521 of the Code) which is exempt from the tax imposed by Chapter 1 of
the Code (including the tax imposed by Section 511 of the Code on unrelated
business taxable income), (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code and (v) any other Person so
designated by the Servicer based upon an Opinion of Counsel that the holding
of an Ownership Interest in a Residual Certificate by such Person may cause
either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a
REMIC or any Person having an Ownership Interest in any Class of Certificates
(other than such Person) to incur a liability for any federal tax imposed
under the Code that would not otherwise be imposed but for the Transfer of an
Ownership Interest in a Residual Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account and the Lower-Tier Distribution Account.
"Distribution Date": The 17th day of any month, or if such 17th day is
not a Business Day, the immediately succeeding Business Day, commencing in
January 1998; provided, however, that no Distribution Date shall fall on a
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date that is fewer than four Business Days after the related Determination
Date.
"Distribution Date Statement": As defined in Section 4.02(a).
"Draw Request": A request by or on behalf of a Construction Borrower for
funds pursuant to Section 3.25(e).
"Due Date": With respect to (i) any Loan on or prior to its Maturity
Date, the day of the month set forth in the related Note on which each
Monthly Payment thereon is scheduled to be first due (without giving effect
to any grace period with respect to late Monthly Payments), (ii) any Loan
after the Maturity Date therefor, the day of the month set forth in the
related Note on which each Monthly Payment on such Loan had been scheduled to
be first due (without giving effect to any grace period with respect to late
Monthly Payments) and (iii) any REO Loan, the day of the month set forth in
the related Note on which each Monthly Payment on the related Loan had been
scheduled to be first due (without giving effect to any grace period with
respect to late Monthly Payments).
"Due Period": With respect to each Distribution Date, the period
beginning on the day following the Determination Date in the month
immediately preceding the month in which such Distribution Date occurs and
ending on the Determination Date of the month in which such Distribution Date
occurs.
"ECC Loan": As defined in Section 3.09(i).
"Eligible Account": Either (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the long-
term unsecured debt obligations of which are rated at least "AA-" by Fitch
(if rated by Fitch (or, if not rated by Fitch, such other account or accounts
with respect to which Fitch shall have confirmed in writing that the then-
current rating assigned to any Class of Certificates that is currently being
rated by Fitch will not be qualified, downgraded or withdrawn by reason
thereof)), "AA-" by S&P and "Aa3", by Moody's, if the deposits are to be held
in such account for more than 30 days or the short-term debt obligations of
which have a short-term rating of not less than "A-1" from S&P, "P-1" by
Moody's and "F-1+" from Fitch (if rated by Fitch (or, if not rated by Fitch,
such other account or accounts with respect to which Fitch shall have
confirmed in writing that the then current rating assigned to any of the
Certificates that are currently being rated by Fitch will not be qualified,
downgraded or withdrawn by reason thereof)) if the deposits are to be held in
such account for 30 days or less, or such other account or accounts with
respect to which each of the Rating Agencies shall have confirmed in writing
that the then current rating assigned to any of the Certificates that are
currently being rated by such Rating Agency will not be qualified, downgraded
or withdrawn by reason thereof or (ii) a segregated trust account or accounts
maintained with the corporate trust department of a federal- or state-
chartered depository institution or trust company that, in either case, has a
combined capital and surplus of at least $50,000,000 and has corporate trust
powers, acting in its fiduciary capacity, provided that any state-chartered
depository institution or trust company is subject to regulation regarding
fiduciary funds substantially similar to 12 C.F.R. Section 9.10(b) or such
other account or accounts with respect to which each of the Rating Agencies
shall have confirmed in writing that the then current rating assigned to any
of the Certificates that are currently being rated by such Rating Agency will
not be qualified, downgraded or withdrawn by reason thereof. Eligible
Accounts may bear interest. No Eligible Account shall be evidenced by a
certificate of deposit, passbook or other similar instrument.
"Eligible Investor": A Qualified Institutional Buyer that is purchasing
for its own account or for the account of a Qualified Institutional Buyer to
whom notice is given that the offer, sale or transfer is being made in
reliance on Rule 144A.
"Enhancement Policy Escrow Account": As defined in Section
4.03(f)(iii).
"Environmental Assessment": A "Phase I assessment" as described in, and
meeting the criteria of, (i) Chapter 5 of the FNMA Multifamily Guide or any
successor provisions covering the same subject matter, in the case of
Specially Serviced Loan as to which the related Mortgaged Property is
multifamily property or (ii) the American Society for Testing and Materials
in the case of Specially Serviced Loan as to which the related Mortgaged
Property is a non-multifamily property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Prohibited Holder": As defined in Section 5.02(d).
"Escrow Payment": Any payment received by the Servicer for the account
of any Mortgagor for application toward the payment of real estate taxes,
assessments, Insurance Policy premiums and similar items in respect of the
related Mortgaged Property, including amounts for deposit to any reserve
account.
"Event of Default": One or more of the events described in
Section 7.01(a).
"Excess Interest": With respect to each of the ARD Loans, interest
accrued on such Loan and allocable to the Excess Rate. The Excess Interest is
an asset of the Trust Fund, but shall not be an asset of the Lower-Tier REMIC
or the Upper-Tier REMIC formed hereunder.
"Excess Interest Distribution Account": The trust account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.04(c), which shall be entitled "Norwest Bank Minnesota,
National Association, as Trustee, in trust for Holders of Credit Suisse First
Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1997-C2, Excess Interest Distribution Account" and which
shall be an Eligible Account. The Excess Interest Distribution Account shall
not be an asset of the Lower-Tier REMIC or the Upper-Tier REMIC formed
hereunder.
"Excess Rate": With respect to each ARD Loan after the related
Anticipated Repayment Date, the excess of (i) the applicable Revised Rate
over (ii) the applicable Mortgage Rate, each as set forth in the Mortgage
Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as amended from
time to time.
"Exchange Act Report": A monthly Distribution Date Statement,
Comparative Financial Status Report, Delinquent Loan Status Report,
Historical Loss Estimate Report, Historical Loan Modification Report, REO
Status Report, Operating Statement Analysis, Servicer Watch List, or report
pursuant to Section 4.02(b) or Annual Compliance Report to be filed with the
Commission, under cover of the related form required by the Exchange Act.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"Final Disbursement": With respect to any Construction Loan, the final
disbursement of funds for the construction of the related CVS Improvements
pursuant to the Final Draw Request for such Construction Loan.
"Final Draw Request": With respect to any Construction Loan, the Draw
Request made in conjunction with the Substantial Completion of the related
CVS Improvements.
"Final Recovery Determination": A determination by the Special Servicer
with respect to any Defaulted Loan or REO Property (other than a Loan or REO
Property, as the case may be, that was purchased (i) by the Mortgage Loan
Seller pursuant to Section 7 of the Mortgage Loan Purchase Agreement, (ii) by
the Servicer or the Special Servicer pursuant to Section 3.18(b), (iii) by
the Holder of 100% of the Percentage Interests in the Class LR Certificates
pursuant to Section 9.03 or (iv) by the Mortgage Loan Seller, the holders of
more than 50% of the Percentage Interests in the Controlling Class or the
Servicer pursuant to Section 9.01), that there has been a recovery of all
Insurance and Condemnation Proceeds, Liquidation Proceeds and other payments
or recoveries that, in the Special Servicer's reasonable good faith judgment,
exercised without regard to any obligation of the Special Servicer to make
payments from its own funds pursuant to Section 3.07(b), will ultimately be
recoverable.
"Fitch": Fitch IBCA, Inc., and its successors in interest.
"FNMA": Federal National Mortgage Association or any successor thereto.
"GECLS Sub-Servicing Agreement": The Sub-Servicing Agreement dated as
of December 11, 1997 between the Servicer and GE Capital Loan Services, Inc.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local
environmental related laws and regulations, and specifically including,
without limitation, asbestos and asbestos-containing materials,
polychlorinated biphenyls, radon gas, petroleum and petroleum products, urea
formaldehyde and any substances classified as being "in inventory," "usable
work in process" or similar classification which would, if classified as
unusable, be included in the foregoing definition.
"Historical Loan Modification Report": With respect to each Servicer
Remittance Date, a report containing all or substantially all the content
described in Exhibit I-3 attached hereto and setting forth, among other
things, those Loans which, as of the close of business on the Determination
Date immediately preceding the preparation of such report, have been modified
pursuant to this Agreement (i) during the related Due Period and (ii) since
the Cut-off Date, showing the original and the revised terms thereof.
"Historical Loss Estimate Report": With respect to each Servicer
Remittance Date, a report substantially containing the information described
in Exhibit I-4 attached hereto and setting forth, among other things, as of
the close of business on the Determination Date immediately preceding the
preparation of such report, (i) the aggregate amount of Liquidation Proceeds
collected for the related Due Period and, separately stated, historically and
(ii) the amount of realized losses occurring on the Loans during such Due
Period, set forth on a Loan-by-Loan basis.
"Independent": When used with respect to any specified Person, any such
Person that (i) is in fact independent of the Depositor, the Servicer, the
Special Servicer and any and all Affiliates thereof, (ii) does not have any
material direct financial interest in or any material indirect financial
interest in any of the Depositor, the Servicer, the Special Servicer or any
Affiliate thereof and (iii) is not connected with the Depositor, the
Servicer, the Special Servicer or any Affiliate thereof as an officer,
employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, however, that a Person shall not fail
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to be Independent of the Depositor, the Servicer, the Special Servicer or
any Affiliate thereof merely because such Person is the beneficial owner of
1% or less of any Class of debt or equity securities issued by the
Depositor, the Servicer, the Special Servicer or any Affiliate thereof, as
the case may be.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership test set forth in that Section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of any Class of Certificates, or such other interest in any Class of
Certificates as is set forth in an Opinion of Counsel, which shall be at no
expense to the Trustee, the Servicer or the Trust, delivered to the Trustee
and the Servicer), so long as the Trust Fund does not receive or derive any
income from such Person and provided that the relationship between such
Person and the Trust Fund is at arm's length, all within the meaning of
Treasury Regulation Section 1.856-4(b)(5) (except that the Servicer or the
Special Servicer shall not be considered to be an Independent Contractor
under the definition in this clause (i) unless an Opinion of Counsel has been
delivered to the Trustee to that effect) or (ii) any other Person (including
the Servicer and the Special Servicer) upon receipt by the Trustee and the
Servicer of an Opinion of Counsel, which shall be at no expense to the
Trustee, the Servicer or the Trust Fund, to the effect that the taking of any
action in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated to be
taken by an Independent Contractor will not cause such REO Property to cease
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8)
of the Code or cause any income realized in respect of such REO Property to
fail to qualify as Rents from Real Property.
"Initial Disbursement Advance": With respect to each Construction Loan,
the disbursement from the Construction Lender, at the closing of such
Construction Loan, of funds designated for allocation to the related
Construction Loan Interest Reserve Sub-Account and the related Construction
Funding Sub-Account, such funds to be held on behalf of the related Borrower.
"Initial Purchaser": Credit Suisse First Boston Corporation, as initial
purchaser of Private Certificates.
"Insurance Policy": With respect to any Loan, any hazard insurance
policy, flood insurance policy, title policy or other insurance policy that
is maintained from time to time in respect of such Loan or the related
Mortgaged Property.
"Insurance and Condemnation Proceeds": All proceeds paid under any
Insurance Policy or in connection with the full or partial condemnation of a
Mortgaged Property, in either case, to the extent such proceeds are not
applied to the restoration of the related Mortgaged Property or released to
the Mortgagor, in either case, in accordance with the Servicing Standard.
"Interest Accrual Period": With respect to any Class of Regular
Certificates or Uncertificated Lower-Tier Interests and any Distribution
Date, the period commencing on the 11th day of the calendar month preceding
the month in which such Distribution Date occurs and ending on the 10th day
of the month in which such Distribution Date occurs. Each Interest Accrual
Period shall be deemed for purposes of this definition to consist of 30 days.
"Interest Reserve Account": The account created and maintained by the
Servicer pursuant to Section 3.30, which shall be entitled "First Union
National Bank, in trust for Norwest Bank Minnesota, National Association, as
Trustee, in trust for Holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
1997-C2, Interest Reserve Account" and which shall be an Eligible Account.
"Interest Reserve Remittance Amount": With respect to any Servicer
Remittance Date and any Construction Loan for which such Servicer Remittance
Date is prior to the second Due Date following the Date of Rent Commencement
under the related Construction Loan Lease, the lesser of (i) the amount on
deposit in the related Construction Loan Interest Reserve Sub-Account on the
related Determination Date and (ii) the amount required by the related Loan
Documents to be applied during the related Due Period as payment on such
Construction Loan.
"Interest Shortfall Amount": As to any Distribution Date and any Class
of Regular Certificates, the amount, if any, by which the amount distributed
on such Class on such Distribution Date in respect of interest is less than
the related Optimal Interest Distribution Amount.
"Interested Person": The Depositor, the Servicer, the Special Servicer,
any Independent Contractor engaged by the Special Servicer, any Holder of a
Certificate or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section 5.02(b).
"IRS Ruling": As defined in Section 3.09(i).
"Issue Price": With respect to each Class of Certificates, the "issue
price" as defined in the REMIC Provisions.
"Late Collections": With respect to any Loan, all amounts received
thereon during any Due Period, whether as payments, Insurance and
Condemnation Proceeds, Liquidation Proceeds or otherwise, which represent
late payments or collections of principal or interest due in respect of such
Loan (without regard to any acceleration of amounts due thereunder by reason
of default) on a Due Date in a previous Due Period and not previously
received. With respect to any REO Loan, all amounts received in connection
with the related REO Property during any Due Period, whether as Insurance and
Condemnation Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which
represent late collections of principal or interest due or deemed due in
respect of such REO Loan or the predecessor Loan (without regard to any
acceleration of amounts due under the predecessor Loan by reason of default)
on a Due Date in a previous Due Period and not previously received. The term
"Late Collections" shall specifically exclude Penalty Charges.
"Liquidation Event": With respect to any Loan, any of the following
events: (i) payment in full of such Loan; (ii) the making of a Final
Recovery Determination with respect to such Loan; (iii) the repurchase of
such Loan by the Mortgage Loan Seller pursuant to Section 7 of the Mortgage
Loan Purchase Agreement; (iv) the purchase of such Loan by the Servicer or
the Special Servicer pursuant to Section 3.18(b); (v) the purchase of any ARD
Loan by the Holder of 100% of the Percentage Interests in the Class LR
Certificates pursuant to Section 9.03 or (vi) the purchase of such Loan by
the Mortgage Loan Seller, the Holders of more than 50% of the Percentage
Interests in the Controlling Class or the Servicer pursuant to Section 9.01.
"Liquidation Fee": A fee payable to the Special Servicer with respect
to each Specially Serviced Loan as to which the Special Servicer receives a
full or discounted payoff with respect thereto from the related Mortgagor or
any Liquidation Proceeds with respect thereto, equal to the product of the
Liquidation Fee Rate and the proceeds of such full or discounted payoff or
the net Liquidation Proceeds (net of the related costs and expenses
associated with the related liquidation) related to such liquidated Specially
Serviced Loan, as the case may be; provided, however, that no Liquidation Fee
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shall be payable with respect to clauses (iii) (but only as it relates to a
sale to the Servicer or Special Servicer), (iv), (v) and (vi) of the
definition of Liquidation Proceeds.
"Liquidation Fee Rate": as defined in Section 3.11.
"Liquidation Proceeds": Cash amounts (other than Insurance and
Condemnation Proceeds and REO Revenues) received or paid by the Servicer in
connection with: (i) the liquidation of a Mortgaged Property or other
collateral constituting security for a Defaulted Loan, through trustee's
sale, foreclosure sale, REO Disposition or otherwise, exclusive of any
portion thereof required to be released to the related Mortgagor; (ii) the
realization upon any deficiency judgment obtained against a Mortgagor;
(iii) the purchase of a Defaulted Loan by the Servicer or the Special
Servicer pursuant to Section 3.18(b) or any other sale thereof pursuant to
Section 3.18(c); (iv) the repurchase of a Loan by the Mortgage Loan Seller
pursuant to Section 7 of the Mortgage Loan Purchase Agreement; (v) the
purchase of such Loan by the Holder of 100% of the Percentage Interests in
the Class LR Certificates pursuant to Section 9.03; or (vi) the purchase of
all Loans by the Mortgage Loan Seller, Holders of more than 50% of the
Percentage Interests in the Controlling Class or the Servicer pursuant to
Section 9.01.
"Loan": Each of the mortgage loans transferred and assigned to the
Trustee pursuant to Section 2.01, and from time to time held in the Trust
Fund, including any Loan which becomes a Specially Serviced Loan. As used
herein, the term "Loan" includes the related Note, Mortgage and other
documents contained in the related Mortgage File and any related agreements.
"Loan Agreement": With respect to any Loan, the loan agreement, if any,
between the Originator and the Borrower, pursuant to which such Loan was
made.
"Loan Documents": With respect to each Loan, to the extent applicable,
the Loan Agreement, the Mortgage, the Note, the Assignment of Leases (if
separate from Mortgage), the Security Agreement, any letters of credit
relating to the Additional Collateral Loans, any UCC financing statements,
the title insurance policy, all surveys, all insurance policies, any
environmental liabilities agreements, any escrow agreements for improvements,
any guaranties related to such Loan, any prior assignments of mortgage in the
event that the originator is not the originator of record, any collateral
assignments of property management agreements and other services agreements
required by the applicable commitment and other loan documents and all
modification, consolidation and extension agreements, if any.
"Loan Servicing Remittance Amount": With respect to any Servicer
Remittance Date, the sum of the amounts on deposit in the related Loan
Servicing Sub-Accounts on the related Determination Date after giving effect
to (a) any required or permitted withdrawals from the Construction Loan
Servicing Account pursuant to clauses (ii), (iii) and (iv) of Section 3.25(n)
and (b) the book-entry transfers, from the related Construction Loan Interest
Reserve Sub-Accounts, of funds in the amount of the aggregate of the Interest
Reserve Remittance Amounts for such Servicer Remittance Date.
"Loan Servicing Sub-Account": With respect to any Construction Loan, the
sub-account created pursuant to Section 3.25(s).
"Loan-to-Value Ratio": With respect to any Loan, as of any date of
determination, the fraction, expressed as a percentage, the numerator of
which is the scheduled principal balance of such Loan at the time of
determination and the denominator of which is the Original Value of the
related Mortgaged Property.
"Lock-Box Account": With respect to any Mortgaged Property, if
applicable, any account created pursuant to any documents relating to a Loan
to receive revenues therefrom. Any Lock-Box Account shall be beneficially
owned for federal income tax purposes by the Person who is entitled to
receive the reinvestment income or gain thereon in accordance with the terms
and provisions of the related Loan and Section 3.06, which Person shall be
taxed on all reinvestment income or gain thereon. The Servicer shall be
permitted to make withdrawals therefrom for deposit into the related Cash
Collateral Accounts.
"Lock-Box Agreement": With respect to any Loan, the lock-box agreement,
if any, between the Originator or the Mortgage Loan Seller and the Borrower,
pursuant to which the related Lock-Box Account, if any, may have been
established.
"Lower-Tier Distribution Account": The segregated account or accounts
created and maintained by the Trustee, pursuant to Section 3.04(b) in trust
for the Certificateholders, which shall be entitled "Norwest Bank Minnesota,
National Association, as Trustee, in trust for the registered Holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 1997-C2, Lower-Tier Distribution Account".
Any such account or accounts shall be an Eligible Account.
"Lower-Tier Distribution Amount": As defined in Section 4.01(b).
"Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interests, (i) on or prior to the first
Distribution Date, an amount equal to the Original Lower-Tier Principal
Amount of such Class as specified in the Preliminary Statement hereto, and
(ii) as of any date of determination after the first Distribution Date, an
amount equal to the Certificate Balance of the Class of Related Certificates
on the Distribution Date immediately prior to such date of determination
(determined as adjusted pursuant to Section 1.02(iii)).
"Lower-Tier REMIC": One of two separate REMICs comprising the Trust
Fund, the assets of which consist of the Loans, any REO Property with respect
thereto, such amounts as shall from time to time be held in the Certificate
Account, the REO Account, if any, and the Lower-Tier Distribution Account,
and except as otherwise provided in this Agreement, all other property
included in the Trust Fund that is not in the Upper-Tier REMIC.
"MAI": Member of the Appraisal Institute.
"Management Agreement": With respect to any Loan, the Management
Agreement, if any, by and between the Manager and the related Borrower, or
any successor Management Agreement between such parties.
"Manager": With respect to any Loan, any property manager for the
related Mortgaged Property or Properties.
"Maturity Date": With respect to any Loan as of any date of
determination, the date on which the last payment of principal is due and
payable under the related Note, after taking into account all Principal
Prepayments received prior to such date of determination, but without giving
effect to (i) any acceleration of the principal of such Loan by reason of
default thereunder, (ii) any grace period permitted by the related Note, or
(iii) any modification, waiver or amendment of such Loan granted or agreed to
by the Servicer or the Special Servicer pursuant to Section 3.20 occurring
prior to such date of determination.
"Mezzanine Loan": Any loan constituting "Mezzanine Debt" or a
"Mezzanine Loan," as identified in the Prospectus Supplement.
"Mezzanine Loan Collateral": With respect to any Mezzanine Loan, any
stock, partnership interests, membership interests or other equity that has
been pledged pursuant to such Mezzanine Loan.
"Mezzanine Loan Collateral Transferee: As defined in Section
3.08(a)(v)(C).
"Mezzanine Loan Holder": With respect to any Mezzanine Loan, the holder
or obligee thereof.
"MGM Plaza Borrower": The Borrower under Loan No. 1.
"MGM Preferred Equity Interest": The preferred equity interest, at any
time, of the Mortgage Loan Seller (or any transferee or assignee) in the MGM
Plaza Borrower.
"MGM Subordinate Note": The promissory note evidencing the non-recourse
subordinate loan of $43,400,000 made to the MGM Plaza Borrower on October 17,
1997 by the Mortgage Loan Seller and secured primarily by a second lien on
the Mortgaged Property securing Loan No. 1.
"Monthly Interest Distributable Amount": As to any Distribution Date
and any Class of Regular Certificates other than the Class A-X Certificates,
the Accrued Certificate Interest Amount for such Class for such Distribution
Date, reduced by (i) such Class's share of (x) the Uncovered Prepayment
Interest Shortfall Amount for such Distribution Date and (y) Trust Fund
indemnification expenses incurred during the related Due Period pursuant to
Sections 6.02 or 8.05 and (ii) any allocations to such Class of any
Certificate Deferred Interest for such Distribution Date. As to any
Distribution Date and the Class A-X Certificates, the Accrued Certificate
Interest Amount for such Class for such Distribution Date, reduced by such
Class's share of (x) the Uncovered Prepayment Interest Shortfall Amount for
such Distribution Date and (y) Trust Fund indemnification expenses incurred
during the related Due Period pursuant to Sections 6.02 or 8.05.
"Monthly Payment": With respect to any Loan, the scheduled monthly
payment of principal and/or interest on such Loan, excluding any Balloon
Payment, which is payable by a Mortgagor under the related Note and
applicable law, without regard to any acceleration of principal of such Loan
by reason of default thereunder or any modification, waiver or amendment of
such Loan granted or agreed to by the Servicer or the Special Servicer
pursuant to Section 3.20.
"Moody's": Moody's Investors Service, Inc., and its successors in
interest.
"Mortgage": With respect to any Loan, the mortgage, deed of trust, deed
to secure debt or other instrument securing a Note and creating a lien on the
related Mortgaged Property.
"Mortgage Deferred Interest": With respect to (i) Loan No. 67, the
amount of accrued unpaid interest that, in accordance with the terms of the
related Note, "negatively amortizes" during the period set forth in such Note
and is added to the Stated Principal Balance of such Note on each Due Date
and (ii) with respect to any Loan that as of any Due Date has been modified
to reduce the rate at which interest is paid currently below the related
Mortgage Rate and with respect to which the amount of interest that accrues
at a rate equal to the amount of such reduction is capitalized, the excess,
if any, of (a) interest accrued on the Stated Principal Balance thereof
during the related Mortgage Interest Accrual Period set forth in the related
Note at such Mortgage Rate over (b) the interest portion of the related
Monthly Payment or, if applicable, Assumed Scheduled Payment due on such Due
Date (where, for purposes of this clause (b) only, the Mortgage Rate used to
calculate such Monthly Payment or Assumed Scheduled Payment is assumed to
have been reduced to reflect such modification).
"Mortgage File": With respect to any Loan, collectively the following
documents:
(i) the original Note, bearing, or accompanied by, all prior and
intervening endorsements or assignments showing a complete chain of
endorsement or assignment from the originator of the Loan to the
Mortgage Loan Seller, and further endorsed (at the direction of the
Depositor given pursuant to the Mortgage Loan Purchase Agreement) by the
Mortgage Loan Seller, on its face or by allonge attached thereto,
without recourse, to the order of the Trustee in the following form:
"Pay to the order of Norwest Bank Minnesota, National Association, as
trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1997-C2, without recourse, representation or
warranty, express or implied";
(ii) a duplicate original Mortgage or, if such Mortgage has been
returned by the related recording office, an original or a copy of a
certified copy thereof from the applicable recording office and
originals (or original or copies of certified copies from the applicable
recording office) of any assignments thereof showing a complete chain of
assignment from the related Originator to the Mortgage Loan Seller, in
each case with evidence of recording indicated thereon;
(iii) an original (or a copy if the original has been sent by the
Servicer for recordation) assignment of the Mortgage, in recordable
form, from the Mortgage Loan Seller to "Norwest Bank Minnesota, National
Association, as trustee for the registered Holders of Credit Suisse
First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1997-C2";
(iv) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and the originals or
copies of any assignments thereof showing a complete chain of assignment
from the originator of the Loan to the Mortgage Loan Seller, in each
case with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in recordable form,
from the Mortgage Loan Seller to "Norwest Bank Minnesota, National
Association, as trustee for the registered Holders of Credit Suisse
First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1997-C2";
(vi) an original or copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and the originals or
copies of any assignments thereof showing a complete chain of assignment
from the originator of the Loan to the Mortgage Loan Seller;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), in recordable form,
from the Mortgage Loan Seller to "Norwest Bank Minnesota, National
Association, as trustee for the registered Holders of Credit Suisse
First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1997-C2";
(viii) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording
thereon, where appropriate, in those instances where the terms or
provisions of the Mortgage, Note or any related security document have
been modified or the Loan has been assumed;
(ix) the original lender's title insurance policy or a copy thereof
effective as of the date of the recordation of the Loan, together with
all endorsements or riders that were issued with or subsequent to the
issuance of such policy, insuring the priority of the Mortgage as a
first lien on the Mortgagor's fee interest in the Mortgaged Property, or
if the policy has not yet been issued, a written commitment or interim
binder, dated as of the date the related Loan was funded;
(x) certified copies of the original or copy of any guaranty of
the obligations of the Mortgagor under the Loan;
(xi) certified copies of all UCC Financing Statements and
continuation statements or copies thereof sufficient to perfect (and
maintain the perfection of) the security interest held by the originator
of the Loan (and each assignee prior to the Trustee) in and to the
personalty of the Mortgagor at the Mortgaged Property (in each case with
evidence of filing thereon), and to transfer such security interest to
the Trustee;
(xii) the original power of attorney (with evidence of recording
thereon) granted by the Mortgagor if the Mortgage, Note or other
document or instrument referred to above was not signed by the
Mortgagor;
(xiii) with respect to any debt of a Borrower permitted under the
related Loan, a subordination agreement, standstill agreement or other
intercreditor agreement relating to such other debt, if any;
(xiv) if any related Lock-Box Agreement or Cash Collateral Agreement
is separate from the Mortgage or Loan Agreement, a copy thereof; with
respect to the Cash Collateral Accounts and Lock-Box Accounts, if any, a
copy of the UCC-1 financing statements, if any, submitted for filing
with respect to the Mortgage Loan Seller's security interest in the Cash
Collateral Accounts and Lock-Box Accounts and all funds contained
therein (and UCC-2 or UCC-3 financing statements assigning such security
interest to the Trustee on behalf of the Certificateholders);
(xv) any Loan Agreement;
(xvi) the original Lease Enhancement Policy, if any;
(xvii) letters of credit, if any, relating to the Additional
Collateral Loans;
(xviii) if such Loan is a Construction Loan, (a) an itemization of all
amounts funded therefrom at the closing thereof and (b) a disbursement
report with regard to such amounts and the allocation thereof to the
various Sub-Accounts for such Construction Loan; and
(xix) any additional documents required to be added to the Mortgage
File pursuant to this Agreement;
provided, however, that whenever the term "Mortgage File" is used to refer to
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documents actually received by the Trustee, or a Custodian appointed
thereby, such term shall not be deemed to include such documents and
instruments required to be included therein unless they are actually so
received.
"Mortgage Interest Accrual Period": With respect to any Loan, the
period during which interest accrues pursuant to the related Note.
"Mortgage Loan Purchase Agreement": The agreement between the Depositor
and the Mortgage Loan Seller, dated as of December 11, 1997, relating to the
transfer of all of the Mortgage Loan Seller's right, title and interest in
and to the Loans.
"Mortgage Loan Schedule": The list of Loans transferred on the Closing
Date to the Trustee as part of the Trust Fund, attached hereto as Exhibit B,
which list sets forth the following information with respect to each Loan:
(i) the loan number (as specified in Annex A to the Prospectus
Supplement);
(ii) the Mortgagor's name and property name;
(iii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iv) the Mortgage Rate in effect at the Cut-off Date;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) original term to stated maturity, (b) remaining term
to stated maturity, (c) Maturity Date and (d) with respect to each ARD
Loan, the Anticipated Repayment Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(xi) the Original Value of the related Mortgaged Property;
(xii) the Loan-to-Value Ratio at the Cut-off Date;
(xiii) the Loan interest accrual method;
(xiv) the Underwritten Debt Service Coverage Ratio;
(xv) the applicable Primary Servicing Fee Rate;
(xvi) Due Date;
(xvii) whether such loan is an ARD Loan;
(xviii) whether the Loan provides for the establishment of a Lock-Box
Account as of the Cut-off Date and, if so, the type of Lock-Box Account;
(xix) whether the Loan is subject to defeasance;
(xx) whether such Loan incorporates a ground lease; and
(xxi) the property type.
Such Mortgage Loan Schedule shall also set forth the aggregate of the
amounts described under clause (vii) above for all of the Loans. Such list
may be in the form of more than one list, collectively setting forth all of
the information required.
"Mortgage Loan Seller": Credit Suisse First Boston Mortgage Capital
LLC, a limited liability company and its successors in interest.
"Mortgage Pass-Through Rate": With respect to any Loan that provides
for calculations of interest based on a 360-day year composed of twelve
months of 30 days each for any Mortgage Interest Accrual Period, the Net
Mortgage Rate thereof. With respect to any Loan that provides for
calculations of interest based on a 360-day year and the actual number of
days elapsed, (a) for any Mortgage Interest Accrual Period relating to an
Interest Accrual Period beginning in any January, February, April, June,
September and November and any December occurring in a year immediately
preceding any year that is not a leap year, the Net Mortgage Rate thereof or
(b) for any Mortgage Interest Accrual Period relating to any Interest Accrual
Period beginning in any March, May, July, August and October and any December
occurring in a year immediately preceding a year that is a leap year, the
product of the Net Mortgage Rate thereof and a fraction whose numerator is 31
and whose denominator is 30.
"Mortgage Rate": With respect to: (i) any Loan on or prior to its
Maturity Date, the annual rate at which interest is scheduled (in the absence
of a default) to accrue on such Loan from time to time in accordance with the
related Note and applicable law; (ii) any Loan after its Maturity Date, the
annualized rate described in clause (i) above determined without regard to
the passage of such Maturity Date; and (iii) any REO Loan, the annualized
rate described in clause (i) or (ii), as applicable, above, determined as if
the predecessor Loan had remained outstanding. The Mortgage Rate for
purposes of calculating Mortgage Pass-Through Rates and the Weighted Average
Net Mortgage Rate will be (i) in the case of Loan No. 67, the rate at which
interest accrues on the related Loan (regardless of the current pay rate), as
set forth in or calculable from the related Mortgage Note and (ii) in the
case of any Loan whose interest rate is reduced the Mortgage Rate of such
Loan without taking into account any reduction in the interest rate by a
bankruptcy court pursuant to a plan of reorganization or pursuant to any of
its equitable powers or any reduction in the interest rate resulting from a
work-out.
"Mortgaged Property": The underlying real property (including any REO
Property) that secures a Loan, in each case consisting of a parcel or parcels
of land improved by a commercial and/or multifamily building or facility,
together with any personal property, fixtures, leases and other property or
rights pertaining thereto.
"Mortgagor": The obligor or obligors on a Note, including, without
limitation, any Person that has acquired the related Mortgaged Property and
assumed the obligations of the original obligor under the Note.
"Net Investment Earnings": With respect to any of the Certificate
Account, the Excess Interest Distribution Account, the Yield Protection
Payment Account, any Lock-Box Account, any Cash Collateral Account, the
Interest Reserve Account, any Servicing Account, the Construction Loan
Servicing Account or the REO Account for any period from any Distribution
Date to the immediately succeeding P&I Advance Date, the amount, if any, by
which the aggregate of all interest and other income realized during such
period on funds relating to the Trust Fund held in such account exceeds the
aggregate of all losses, if any, incurred during such period in connection
with the investment of such funds in accordance with Section 3.06 (or, in the
case of the Construction Loan Servicing Account, Section 3.25).
"Net Investment Loss": With respect to any of the Certificate Account,
the Excess Interest Distribution Account, the Yield Protection Payment
Account, any Lock-Box Account, any Cash Collateral Account, the Interest
Reserve Account, any Servicing Account, the Construction Loan Servicing
Account or the REO Account for any period from any Distribution Date to the
immediately succeeding P&I Advance Date, the amount, if any, by which the
aggregate of all losses, if any, incurred during such period in connection
with the investment of funds relating to the Trust Fund held in such account
in accordance with Section 3.06 (or, in the case of the Construction Loan
Servicing Account, Section 3.25) exceeds the aggregate of all interest and
other income realized during such period on such funds.
"Net Mortgage Pass-Through Rate": With respect to any Loan and any
Distribution Date, the Mortgage Pass-Through Rate for such Loan for the
related Interest Accrual Period minus the sum of the Servicing Fee Rate and
the Trustee Fee Rate, plus, for Loan Nos. 3, 35, 41, 42, 43, 48, 62, 78, 103
and 116, the related Servicing Fee Reimbursement Rate; provided, however,
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that if Loan No. 35, 41, 42, 43 or 78 is defeased, the Servicing Fee
Reimbursement Rate will not be applied when calculating such rate.
"Net Mortgage Rate": With respect to any Interest Accrual Period and
any Loan, a per annum rate equal to the Mortgage Rate for such Loan as of the
Cut-off Date minus the related Primary Servicing Fee Rate, plus, for Loan
Nos. 3, 35, 41, 42, 43, 48, 62, 78, 103 and 116, the related Primary
Servicing Fee Reimbursement Rate; provided, however, that if Loan No. 35, 41,
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42, 43 or 78 is defeased, the Primary Servicing Fee Reimbursement Rate will
not be applied when calculating such rate.
"Net Operating Income": With respect to any Mortgaged Property, for any
Mortgagor's fiscal year end, the total operating revenues derived from such
Mortgaged Property during such period, minus the total operating expenses
incurred in respect of such Mortgaged Property during such period and capital
expenditure reserves, other than (i) non-cash items such as depreciation,
(ii) amortization, (iii) actual capital expenditures and (iv) debt service on
the related Loan.
"New CVS Store": Any CVS Store substituted for a CVS Store pursuant to
CVS's right to make such substitutions in the event that a CVS Store is not
completed before any applicable Outside Completion Date.
"New Lease": Any lease of REO Property entered into at the direction of
the Special Servicer on behalf of the Trust, including any lease renewed,
modified or extended on behalf of the Trust, if the Trust Fund has the right
to renegotiate the terms of such lease.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of a Loan or REO Loan which, in the judgment
of the Servicer, the Special Servicer or the Trustee, as applicable, will not
be ultimately recoverable, together with any accrued and unpaid interest
thereon, from Late Collections or any other recovery on or in respect of such
Loan or REO Loan. The determination by the Servicer, the Special Servicer or
the Trustee, as applicable, that it has made (or, in the case of a
determination made by the Special Servicer, that the Servicer has made) a
Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would
constitute a Nonrecoverable P&I Advance, shall be evidenced by an Officer's
Certificate delivered to (i) the Trustee and the Depositor, in the case of
the Servicer, (ii) to the Servicer in the case of the Special Servicer, and
(iii) to the Depositor and the Servicer, in the case of the Trustee. The
Officer's Certificate shall set forth such determination of nonrecoverability
and the considerations of the Servicer, the Special Servicer or the Trustee,
as applicable, forming the basis of such determination (which shall include
but shall not be limited to information, to the extent available, such as
related income and expense statements, rent rolls, occupancy status, property
inspections, and shall include an Appraisal of the related Loan or Mortgaged
Property, the cost of which Appraisal shall be advanced by the Servicer as a
Servicing Advance). The Trustee shall be entitled to conclusively rely on
the Servicer's determination that a P&I Advance is nonrecoverable. The
Servicer shall be entitled to conclusively rely on the Special Servicer's
determination that a P&I Advance is nonrecoverable.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Loan or REO Property which, in
the judgment of the Servicer, the Special Servicer or the Trustee, as the
case may be, will not be ultimately recoverable, together with any accrued
and unpaid interest thereon, from Late Collections or any other recovery on
or in respect of such Loan or REO Property. The determination by the
Servicer, the Special Servicer or the Trustee, as the case may be, that it
has made (or, in the case of a determination made by the Special Servicer,
that the Servicer has made) a Nonrecoverable Servicing Advance or that any
proposed Servicing Advance, if made, would constitute a Nonrecoverable
Servicing Advance, shall be evidenced by an Officer's Certificate delivered
to (i) the Trustee and the Depositor, in the case of the Servicer, (ii) to
the Servicer in the case of the Special Servicer, and (iii) to the Depositor
and the Servicer, in the case of the Trustee. The Officer's Certificate
shall set forth such determination of nonrecoverability and the
considerations of the Servicer, the Special Servicer or the Trustee, as
applicable, forming the basis of such determination (which shall include but
shall not be limited to information, to the extent available, such as related
income and expense statements, rent rolls, occupancy status and property
inspections, and shall include an Appraisal of the related Loan or Mortgaged
Property, the cost of which Appraisal shall be advanced by the Servicer as a
Servicing Advance). The Trustee will be entitled to conclusively rely on the
Servicer's determination that a Servicing Advance is nonrecoverable. The
Servicer shall be entitled to conclusively rely on the Special Servicer's
determination that a Servicing Advance is a Nonrecoverable Servicing Advance.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Certificate other than a Public Certificate.
"Non-U.S. Person": Any person other than a U.S. Person, unless, with
respect to the Transfer of a Residual Certificate, (i) such person holds such
Residual Certificate in connection with the conduct of a trade or business
within the United States and furnishes the Transferor and the Certificate
Registrar with an effective Internal Revenue Service Form 4224 or (ii) the
Transferee delivers to both the Transferor and the Certificate Registrar an
opinion of a nationally recognized tax counsel to the effect that such
Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes.
"Norwest Bank Minnesota, National Association": Norwest Bank Minnesota,
a national banking association, or any corporation or other entity into which
it may be merged, consolidated or converted, or any corporation or other
entity resulting from any merger, consolidation or conversion to which it
shall be a party, or any corporation or other entity succeeding to its
business.
"Note": The original executed note evidencing the indebtedness of a
Mortgagor under a Loan, together with any rider, addendum or amendment
thereto.
"Notional Balance": For any date of determination, an amount equal to
the sum of the Certificate Balances of the Classes of Regular Certificates
(other than the Class A-X Certificates) as of the preceding Distribution Date
(after giving effect to the distribution of principal on such Distribution
Date) or, in the case of the first Distribution Date, the Cut-off Date.
"Officer's Certificate": A certificate signed by a Servicing Officer of
the Servicer or the Special Servicer, as the case may be, or a Responsible
Officer of the Trustee.
"Operating Statement Analysis": With respect to each Loan and REO
Property, a report substantially containing the information described in
Exhibit I-7 attached hereto.
"Opinion of Counsel": A written opinion of counsel, who may be salaried
counsel for the Depositor, the Servicer or the Special Servicer, acceptable
in form and delivered to the Trustee, except that any opinion of counsel
relating to (a) the qualification of the Upper-Tier REMIC or Lower-Tier REMIC
as a REMIC, (b) compliance with the REMIC Provisions or (c) the resignation
of the Depositor, the Servicer or the Special Servicer pursuant to
Section 6.04 must be an opinion of counsel that is in fact Independent of the
Depositor, the Servicer or the Special Servicer, as applicable.
"Optimal Interest Distribution Amount": As to any Distribution Date and
any Class of Regular Certificates, the sum of the Monthly Interest
Distributable Amount and the Unpaid Interest Shortfall Amount for such Class
for such Distribution Date.
"Original Certificate Balance": With respect to any Class of Regular
Certificates (other than the Class A-X Certificates), the initial aggregate
principal amount thereof as of the Closing Date, in each case as specified in
the Preliminary Statement.
"Original Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interest, the initial principal amount thereof as
of the Closing Date, in each case as specified in the Preliminary Statement.
"Original Value": The Appraised Value of a Mortgaged Property based
upon the Appraisal conducted in connection with the origination of the
related Loan.
"Originator": Any institution which originated a Loan.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Outside Completion Date": The latest date upon which a CVS Store must
be completed before CVS is permitted to substitute a New CVS Store as
collateral in respect of a Construction Loan, as set forth in the related
Loan Documents, subject to the extension rights set forth therein.
"Owner": As defined in Section 3.08(a)(v)(C).
"Ownership Interest": As to any Certificate, any ownership or security
interest in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial, as owner or as
pledgee.
"Pass-Through Rate": As to each Class of Certificates, the rate set
forth in the table below:
Class A-1: Class A-1 Pass-Through Rate
Class A-2: Class A-2 Pass-Through Rate
Class A-3: Class A-3 Pass-Through Rate
Class A-X: Class A-X Pass-Through Rate
Class B: Class B Pass-Through Rate
Class C: Class C Pass-Through Rate
Class D: Class D Pass-Through Rate
Class E: Class E Pass-Through Rate
Class F: Class F Pass-Through Rate
Class G: Class G Pass-Through Rate
Class H: Class H Pass-Through Rate
Class I: Class I Pass-Through Rate
Class J: Class J Pass-Through Rate
"Penalty Charges": With respect to any Loan (or successor REO Loan),
any amounts actually collected thereon from the Mortgagor that represent late
payment charges or Default Interest, other than a Prepayment Premium or Yield
Maintenance Charge.
"Percentage Interest": As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made with respect to the
related Class. With respect to any Regular Certificate, the percentage
interest is equal to the Denomination of such Certificate divided by the
initial Certificate Balance (or, in the case of the Class A-X Certificates,
the Notional Balance) of such Class of Certificates as of the Closing Date.
With respect to a Class V-1 or Residual Certificate, the percentage interest
is set forth on the face thereof.
"Permanent Loan Phase": With respect to any Construction Loan, the
period between (i) the earlier of (a) the Substantial Completion of the CVS
Improvements on the Mortgaged Property securing such Construction Loan and
(b) the Date of Rent Commencement under the related Construction Loan Lease
and (ii) the earlier of (a) the Maturity Date of such Construction Loan and
(b) the date such Construction Loan is repaid in full.
"Permitted Institutional Transferee": With respect to any Mezzanine
Loan, any proposed transferee thereof that is (i) an affiliate of the
Underwriter; (ii) an insurance company, bank, savings and loan association,
trust company, commercial credit corporation, pension plan, pension fund or
pension fund advisory firm, mutual fund or other investment company,
governmental entity or plan, "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act (other than a broker/dealer) or
an institution substantially similar to any of the foregoing, in each case
under this clause (ii) having at least $250,000,000 in capital/statutory
surplus or shareholder's equity and at least $12,000,000,000 in total assets,
and being experienced in making commercial real estate loans; or (iii) any
entity wholly owned by any one or more institutions meeting the criteria in
clause (ii). The Servicer shall obtain from the proposed transferee, and
shall be entitled to rely on, (i) an officer's certificate of a proposed
transferee that such transferee satisfies the requirements of this definition
and (ii) in the case of any proposed transferee that is an entity described
in and meeting the criteria in clause (ii) of the immediately preceding
sentence, the most recent financial statements of such transferee.
"Permitted Investments": Any one or more of the following obligations
or securities, regardless whether issued by the Depositor, the Servicer, the
Special Servicer, the Trustee or any of their respective Affiliates and
having the required ratings, if any, provided for in this definition:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of
America, FNMA, FHLMC or any agency or instrumentality of the United
States of America, the obligations maturing one year or less after the
date of issuance and which are backed by the full faith and credit of
the United States of America; provided that any obligation of, or
guarantee by, FNMA or FHLMC, other than an unsecured senior debt
obligation of FNMA or FHLMC, shall be a Permitted Investment only if
such investment would not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each Rating Agency
to any Certificate as confirmed in writing;
(ii) time deposits, unsecured certificates of deposit, or bankers'
acceptances that mature in one year or less after the date of issuance
and are issued or held by any depository institution or trust company
incorporated or organized under the laws of the United States of America
or any State thereof and subject to supervision and examination by
federal or state banking authorities, so long as the commercial paper or
other short-term debt obligations of such depository institution or
trust company are rated at least "A-1+" by S&P, "P-1" by Moody's and "F-
1+" by Fitch or would not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each Rating Agency
to any Certificate, as confirmed in writing by such Rating Agency;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a
remaining maturity of one year or less and where such repurchase
obligation has been entered into with a depository institution or trust
company (acting as principal) described in clause (ii) above;
(iv) debt obligations maturing in one year or less bearing interest
or sold at a discount issued by any corporation incorporated under the
laws of the United States of America or any state thereof, which
securities have (i) ratings from S&P and Fitch at least equal to "AA-"
and from Moody's at least equal to the minimum maturity-based ratings
described below or (ii) such other ratings (as confirmed by the
applicable Rating Agency in writing) as will not result in a downgrade,
qualification or withdrawal of the then-current rating of the
Certificates that are currently being rated by such Rating Agency;
provided, however, that securities issued by any particular corporation
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will not be Permitted Investments to the extent that investment therein
will cause the then outstanding principal amount of securities issued by
such corporation and held in the accounts established hereunder to exceed
10% of the sum of the aggregate principal balance and the aggregate
principal amount of all Permitted Investments in such accounts;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations) payable on demand or on a
specified date maturing in 1 year or less after the date of issuance
thereof and which is rated at least "A-1+" by S&P, "P-1" by Moody's and
"F-1+" by Fitch;
(vi) units of investment funds that maintain a constant net asset
value, money market funds, rated "AAAm" by S&P, "Aaa" by Moody's and in
the highest category by Fitch; and
(vii) any other demand, money market or time deposit, obligation,
security or investment, (a) with respect to which each Rating Agency
shall have confirmed in writing that such investment will not result in
a downgrade, qualification or withdrawal of the then-current rating of
the Certificates that are currently being rated by such Rating Agency
and (b) which qualifies as a "cash flow investment" pursuant to
Section 860G(a)(6) of the Code;
provided, however, that in each case, the minimum maturity-based ratings by
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Moody's for investments are: (i) if the investment matures within one month,
"A2" or "P-1"; (ii) if the investment matures more than one month later but
within three months, "A1" and "P-1"; (iii) if the investment matures more
than three months but within six months, "Aa3" and "P-1"; and (iv) if the
investment matures more than six months later, "Aaa" and "P-1"; and provided,
--------
further, however, that in each case, if the investment is rated by S&P,
- ------- -------
(a) it shall not have an "r" highlighter affixed to its rating from S&P,
(b) it shall have a predetermined fixed dollar of principal due at maturity
that cannot vary or change, (c) it shall have a maturity less than or equal
to one year and (d) any such investment that provides for a variable rate of
interest must have an interest rate that is tied to a single interest rate
index plus a fixed spread, if any, and move proportionately with such index;
and provided, further, however, that no such instrument shall be a Permitted
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Investment (a) if such instrument evidences principal and interest payments
derived from obligations underlying such instrument and the interest
payments with respect to such instrument provide a yield to maturity at the
time of acquisition of greater than 120% of the yield to maturity at par of
such underlying obligations or (b) if such instrument may be redeemed at a
price below the purchase price; and provided, further, however, that no
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amount beneficially owned by either the Upper-Tier REMIC or the Lower-Tier
REMIC (even if not yet deposited in the Trust) may be invested in
investments (other than money market funds) treated as equity interests for
federal income tax purposes, unless the Servicer receives an Opinion of
Counsel, at its own expense, to the effect that such investment will not
adversely affect the status of either the Upper-Tier REMIC or the Lower-Tier
REMIC as a REMIC under the Code or result in imposition of a tax on such
Upper-Tier REMIC or Lower-Tier REMIC. Permitted Investments that are
subject to prepayment or call may not be purchased at a price in excess of
par.
"Permitted Mezzanine Loan Holder": With respect to any Mezzanine Loan,
the Mortgage Loan Seller, any Permitted Institutional Transferee or any other
Mezzanine Loan Holder with respect to which each Rating Agency has confirmed
in writing that the holding of such Mezzanine Loan by such Person would not
cause a qualification, downgrade or withdrawal of any of such Rating Agency's
then-current ratings on the Certificates. With respect to Loan No. 2,
Capital Trust, any Affiliate thereof or any Person described in the
immediately preceding sentence.
"Permitted MGM Securityholder": Any of the following: (i) the Mortgage
Loan Seller, (ii) any Permitted Institutional Transferee, (iii) the trust
fund established pursuant to the Trust Agreement dated as of December 31,
1997 between the Mortgage Loan Seller, as depositor, and Norwest Bank
Minnesota, National Association, as trustee (but only so long as (a) the
Underwriter, any Affiliate of the Underwriter, or any officer of the
Underwriter or such Affiliate is the beneficial owner of more than 50% of the
Class B certificates issued pursuant to such Trust Agreement and (b) Capital
Trust or the Underwriter or any entity affiliated or sponsored by either of
them is the beneficial owner of more than 50% of the Class A certificates
issued pursuant to such Trust Agreement) or (iv) any other proposed
transferee of the MGM Subordinate Note or MGM Preferred Equity Interest (or,
in either case, an interest therein) with respect to which each Rating Agency
has confirmed in writing that the holding by such Person of the MGM
Subordinate Note or MGM Preferred Equity Interest (or, in either case, such
interest) would not cause a qualification, downgrade or withdrawal of any of
such Rating Agency's then-current ratings on the Certificates.
"Person": Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"P&I Advance": As to any Loan or REO Loan, any advance made by the
Servicer or the Trustee, as applicable, pursuant to Section 4.03 or Section
7.05.
"P&I Advance Date": The Business Day immediately prior to each
Distribution Date.
"P&I Advance Determination Date": With respect to any Distribution
Date, the second Business Day immediately prior thereto.
"Plan": As defined in Section 5.02(c).
"Pool Loan": A Loan secured by more than one Mortgaged Property.
"Prepayment Assumption": With respect to all Loans other than the ARD
Loans, the assumption that all payments required to be made on such Loans
according to their contractual terms (including repayment in full on their
respective maturity dates) are so made. With respect to all ARD Loans, the
assumption that the ARD Loans will be fully prepaid on their related
Anticipated Repayment Dates.
"Prepayment Date": With respect to any Principal Prepayment, the date
on which such Principal Prepayment is to be made.
"Prepayment Interest Excess": With respect to any Distribution Date,
for each Loan that was subject to a Principal Prepayment in full or in part,
or as to which Insurance and Condemnation Proceeds were received by the
Servicer or Special Servicer for application to such Loan, in each case after
the Due Date in the month of such Distribution Date and on or prior to the
related Determination Date, the amount of interest accrued at the Mortgage
Rate (plus, as applicable, the related Primary Servicing Fee Reimbursement
Rate and/or the Servicing Fee Reimbursement Rate) for such Loan on the amount
of such Principal Prepayment or Insurance and Condemnation Proceeds after the
Mortgage Interest Accrual Period relating to such Due Date and accruing in
the manner set forth in the Loan Documents relating to such Loan, to the
extent such interest is collected by the Servicer or the Special Servicer.
"Prepayment Interest Shortfall": With respect to any Distribution Date,
for each Loan that was subject to a Principal Prepayment in full or in part,
or as to which Insurance and Condemnation Proceeds were received by the
Servicer or Special Servicer for application to such Loan, in each case after
the Determination Date in the calendar month preceding such Distribution Date
but prior to the Due Date in the related Due Period, the amount of interest
that would have accrued at the Net Mortgage Pass-Through Rate for such Loan
on the amount of such Principal Prepayment or Insurance and Condemnation
Proceeds during the period commencing on the date as of which such Principal
Prepayment or Insurance and Condemnation Proceeds were applied to the unpaid
principal balance of the Loan and ending on (and including) the day
immediately preceding such Due Date.
"Prepayment Premium": Any premium, penalty or fee (other than a Yield
Maintenance Charge) paid or payable, as the context requires, by a Mortgagor
in connection with a Principal Prepayment.
"Primary Servicing Fee": With respect to each Loan for which there is a
Primary Servicing Fee Rate set forth in the Mortgage Loan Schedule, the fee
payable to the related Seller-Servicer under the Seller-Servicer Agreement or
to the Servicer pursuant to Section 3.11(a), based on the Primary Servicing
Fee Rate.
"Primary Servicing Fee Rate": With respect to each Loan, the per annum
rate set forth on the Mortgage Loan Schedule with respect thereto.
"Primary Servicing Fee Reimbursement Amount": With respect to any of
Loan Nos. 3, 35, 41, 42, 43, 48, 62, 78, 103 and 116 and any related Mortgage
Interest Accrual Period, the product of the related Primary Servicing Fee
Reimbursement Rate and the Stated Principal Balance of such Loan for such
Mortgage Interest Accrual Period (or portion thereof, as applicable).
"Primary Servicing Fee Reimbursement Rate": With respect to Loan Nos.
3, 35, 41, 42, 43, 48, 62, 78, 103 and 116, 0.05% per annum.
"Principal Distribution Amount": As to any Distribution Date, the sum
of (i) the amount collected or otherwise received on or with respect to
principal of the Loans during the related Due Period and (ii) that portion of
the P&I Advance, if any, made in respect of principal of the Loans with
respect to such Distribution Date.
"Principal Prepayment": Any payment of principal made by the Mortgagor
on a Loan which is received in advance of its scheduled Due Date and which is
not accompanied by an amount of interest representing scheduled interest due
on any date or dates in any month or months subsequent to the month of
prepayment, other than any amount paid in connection with the release of the
related Mortgaged Property through defeasance.
"Private Certificate": Any Class F, Class G, Class H, Class I or Class
J Certificate.
"Project Budget": With respect to any Construction Loan, the Project
Budget as defined in the related CSFB Construction Loan Agreement.
"Project Plans and Specifications": With respect to any Construction
Loan, the construction plan and specifications for the CVS Improvements to be
constructed on the related Mortgaged Property.
"Prospectus": The Prospectus dated December 12, 1997, as supplemented
by the Prospectus Supplement.
"Prospectus Supplement": The Prospectus Supplement dated December 12,
1997, relating to the offering of the Public Certificates.
"Public Certificate": Any Class A-1, Class A-2, Class A-3, Class A-X,
Class B, Class C, Class D or Class E Certificate.
"Punch List Items": With respect to any Construction Loan, those
details of construction, decoration and mechanical and electrical adjustment
that in the aggregate are minor in character and do not materially interfere
with the related Tenant's use or enjoyment of the related CVS Improvements.
"Purchase Price": With respect to any Loan to be purchased by the
Mortgage Loan Seller pursuant to Section 7 of the Mortgage Loan Purchase
Agreement, by the Servicer or the Special Servicer pursuant to
Section 3.18(b), or by the Mortgage Loan Seller, the holders of a majority of
the Percentage Interests in the Controlling Class or the Servicer pursuant to
Section 9.01 or to be otherwise sold pursuant to Section 3.18(c), a price
equal to the sum of the following:
(i) the outstanding principal balance of such Loan as of the date
of purchase;
(ii) all accrued and unpaid interest on such Loan at the related
Mortgage Rate in effect from time to time to but not including the Due
Date in the Due Period of purchase;
(iii) all related unreimbursed Servicing Advances plus accrued and
unpaid interest on related Advances at the Reimbursement Rate, and
unpaid Servicing Fees, Primary Servicing Fees and Special Servicing Fees
allocable to such Loan; and
(iv) if such Loan is being purchased by the Mortgage Loan Seller
pursuant to Section 7 of the Mortgage Loan Purchase Agreement, all
reasonable out-of-pocket expenses reasonably incurred or to be incurred
by the Servicer, the Special Servicer, the Depositor and the Trustee in
respect of the Breach or Defect giving rise to the repurchase
obligation, including any expenses arising out of the enforcement of the
repurchase obligation.
With respect to any REO Property to be sold pursuant to Section 3.18(c), the
amount calculated in accordance with the preceding sentence in respect of the
related REO Loan.
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": (i) With respect to any Loan, REO Loan or REO
Property, an insurance company or security or bonding company qualified to
write the related Insurance Policy in the relevant jurisdiction with a
minimum claims paying ability rating of at least "A2" by Moody's, "A" by S&P
and "A" by Fitch if then rated by Fitch, and (ii) with respect to the
fidelity bond and errors and omissions Insurance Policy required to be
maintained pursuant to Section 3.07(c), an insurance company that has a
claims paying ability rated no lower than two ratings below the rating
assigned to the then highest rated outstanding Certificate, but in no event
lower than "A" by Fitch if then rated by Fitch, "A" by S&P and "Baa3" by
Moody's, or, in the case of clauses (i) and (ii), such other rating as each
Rating Agency shall have confirmed in writing will not cause such Rating
Agency to downgrade, qualify or withdraw the then-current rating assigned to
any of the Certificates that are then currently being rated by such Rating
Agency.
"Rated Final Distribution Date": As to each Class of Certificates,
January 17, 2035.
"Rating Agency": Each of Fitch, Moody's and S&P or their successors in
interest. If any of such rating agencies or any successor thereto ceases to
remain in existence, "Rating Agency" shall be deemed to refer to any other
nationally recognized statistical rating agency, or other comparable Person,
designated by the Depositor to replace the rating agency that has ceased to
exist. Notice of such designation shall be given to the Trustee and the
Servicer, and the specific ratings of Fitch, Moody's and S&P herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated.
"Realmark Borrower": With respect to any Realmark Loan, the Borrower or
Borrowers on any related Note or Notes.
"Realmark Loan": Any one of Loan Nos. 68, 77, 85, 90, 104, 113, 123,
128, 129, 139, 150, 152 and 177.
"Record Date": With respect to any Distribution Date, the last Business
Day of the month immediately preceding the month in which such Distribution
Date occurs.
"Reduction Rate": A rate per annum equal to the average of the Pass-
Through Rates of each Class to which an Appraisal Reduction has been
allocated (in accordance with Section 4.05 hereof), weighted on the basis of
the amount of Appraisal Reductions allocated to such Class.
"Registrar Office": As defined in Section 5.02(a).
"Regular Certificate": Any Public Certificate or Private Certificate.
"Regular Yield Protection Payment Amount": As defined in the definition
of Yield Protection Payment.
"Reimbursement Rate": The rate per annum applicable to the accrual of
interest on Servicing Advances in accordance with Section 3.03(d) and P&I
Advances in accordance with Section 4.03(d), which rate per annum shall equal
the "Prime Rate" published in the "Money Rates" section of The Wall Street
Journal (or, if such section or publication is no longer available, such
other comparable publication as is determined by the Trustee in its sole
discretion) as may be in effect from time to time, or, if the "Prime Rate" no
longer exists, such other comparable rate (as determined by the Trustee in
its reasonable discretion) as may be in effect from time to time.
"Related Certificates" and "Related Uncertificated Lower-Tier Interest":
For the following Classes of Uncertificated Lower-Tier Interests, the related
Class of Certificates set forth below and for the following Classes of
Certificates, the related Class of Uncertificated Lower-Tier Interests set
forth below:
<TABLE>
<CAPTION>
Related Uncertificated
Related Certificates Lower-Tier Interest
- -------------------- -------------------
<S> <C>
Class A-1 Certificate Class LA-1 Uncertificated Interest
Class A-2 Certificate Class LA-2 Uncertificated Interest
Class A-3 Certificate Class LA-3 Uncertificated Interest
Class B Certificate Class LB Uncertificated Interest
Class C Certificate Class LC Uncertificated Interest
Class D Certificate Class LD Uncertificated Interest
Class E Certificate Class LE Uncertificated Interest
Class F Certificate Class LF Uncertificated Interest
Class G Certificate Class LG Uncertificated Interest
Class H Certificate Class LH Uncertificated Interest
Class I Certificate Class LI Uncertificated Interest
Class J Certificate Class LJ Uncertificated Interest
</TABLE>
"Remaining Principal Distributable Amount": As to any Distribution Date
and a given Class of Regular Certificates other than the Class A-X
Certificates, the amount, if any, by which the Principal Distribution Amount
for such Distribution Date exceeds the aggregate amount distributed in
respect of such amounts on such Distribution Date to all Classes senior to
such given Class.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Provisions": Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of Subtitle A of the Code, and
related provisions, and proposed, temporary and final Treasury regulations
and any rulings promulgated thereunder, as the foregoing may be in effect
from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "Lennar
Partners, Inc., as Special Servicer, in trust for Norwest Bank Minnesota,
National Association, as Trustee, for Holders of Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates,
Series 1997-C2, REO Account." Any such account or accounts shall be an
Eligible Account.
"REO Acquisition": With respect to any Loan, the acquisition by the
Trust Fund of REO Property related to such Loan.
"REO Acquisition Date": The date of the Trust Fund's acquisition for
federal income tax purposes of any REO Property pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Loan deemed to be outstanding with respect to each REO
Property. Each REO Loan shall be deemed to be outstanding for so long as the
related REO Property (i) remains part of the Trust Fund, (ii) provides for
Assumed Scheduled Payments on each Due Date therefor and (iii) otherwise has
the same terms and conditions as its predecessor Loan, including, without
limitation, with respect to the calculation of the Mortgage Rate in effect
from time to time (such terms and conditions to be applied without regard to
the default on such predecessor Loan). Each REO Loan shall be deemed to have
an initial outstanding principal balance and Stated Principal Balance equal
to the outstanding principal balance and Stated Principal Balance,
respectively, of its predecessor Loan as of the related REO Acquisition Date.
All amounts due and owing in respect of the predecessor Loan as of the
related REO Acquisition Date, including, without limitation, accrued and
unpaid interest, shall continue to be due and owing in respect of an REO
Loan. All amounts payable or reimbursable to the Servicer, the Special
Servicer or the Trustee, as applicable, in respect of the predecessor Loan as
of the related REO Acquisition Date, including, without limitation, any
unpaid Special Servicing Fees and Servicing Fees and any unreimbursed
Advances, together with any interest accrued and payable to the Servicer or
the Trustee in respect of such Advances in accordance with Section 3.03(d) or
Section 4.03(d), shall continue to be payable or reimbursable to the Servicer
or the Trustee in respect of an REO Loan. Collections in respect of each REO
Loan (exclusive of amounts to be applied to the payment of, or to be
reimbursed to the Servicer or the Special Servicer for the payment of, the
costs of operating, managing and maintaining the related REO Property) shall
be treated: first, as a recovery of accrued and unpaid Advances, Primary
-----
Servicing Fees and Servicing Fees and related interest due the Servicer or
the Trustee, as applicable; second, as a recovery of accrued and unpaid
------
interest on such REO Loan at the related Mortgage Rate to but not including
the Due Date in the Due Period of receipt; third, as a recovery of principal
-----
of such REO Loan to the extent of its entire unpaid principal balance; and
fourth, in accordance with the Servicing Standard of the Servicer, as a
- ------
recovery of any other amounts due and owing in respect of such REO Loan,
including, without limitation, Yield Maintenance Charges, Prepayment
Premiums and Penalty Charges.
"REO Loan Accrual Period": With respect to any REO Loan and any Due
Date therefor, the Mortgage Interest Accrual Period with respect to the
related Loan immediately preceding such Due Date.
"REO Property": A Mortgaged Property acquired by the Special Servicer
on behalf of and in the name of the Trustee (or its nominee) for the benefit
of the Certificateholders through foreclosure, acceptance of a deed in lieu
of foreclosure or otherwise in accordance with applicable law in connection
with the default or imminent default of a Loan.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property.
"REO Status Report": A report substantially containing the information
described in Exhibit I-5 attached hereto, setting forth, among other things,
with respect to each REO Property that was included in the Trust Fund as of
the close of business on the Determination Date immediately preceding the
preparation of such report, (i) the acquisition date of such REO Property,
(ii) the amount of income collected with respect to any REO Property net of
related expenses and other amounts, if any, received on such REO Property
during the related Due Period and (iii) the value of the REO Property based
on the most recent appraisal or other valuation thereof available to the
Special Servicer as of such date of determination (including any prepared
internally by the Special Servicer).
"Request for Release": A release signed by a Servicing Officer of the
Servicer or the Special Servicer, as applicable, in the form of Exhibit F
attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR Certificate
issued, authenticated and delivered hereunder.
"Responsible Officer": When used with respect to the initial Trustee
and Certificate Registrar, any Vice President, Assistant Vice President,
corporate trust officer or assistant corporate trust officer of the Trustee
or Certificate Registrar, as applicable, having direct responsibility for the
administration of this Agreement, and with respect to any successor Trustee
or Certificate Registrar, as applicable, any officer or assistant officer in
the corporate trust department of the Trustee or Certificate Registrar, as
applicable, or any other officer of the Trustee or Certificate Registrar, as
applicable, customarily performing functions similar to those performed by
any of the above designated officers to whom a particular matter is referred
by the Trustee or Certificate Registrar, as applicable, because of such
officer's knowledge of and familiarity with the particular subject.
"Retainage Funds": With respect to each Construction Loan, the amount
identified as the "Retainage" in the related CSFB Construction Loan
Agreement.
"Revised Rate": With respect to the Loans, the increased interest rate
after the Anticipated Repayment Date (in the absence of a default) for each
applicable Loan, as calculated and as set forth in the related Loan.
"S&P": Standard and Poor's Ratings Services, a division of The McGraw-
Hill Companies, Inc., and its successors in interest.
"Security Agreement": With respect to any Loan, any security agreement
or equivalent instrument, whether contained in the related Mortgage or
executed separately, creating in favor of the holder of such Mortgage a
security interest in the personal property constituting security for
repayment of such Loan.
"Securities Act": The Securities Act of 1933, as amended.
"Seller-Servicer": Any of Continental Wingate Associates, Inc.,
Heartland Bank, National Consumer Cooperative Bank, ARCS Commercial Mortgage
Co. and L.P. Bloomfield Servicing Company, L.L.C.
"Seller-Servicer Agreement": The Sub-Servicing Agreement dated as of
December 11, 1997, as amended as of such date, by and between the Servicer
and each of the Seller-Servicers.
"Servicer": First Union National Bank and its successor in interest and
assigns, or any successor Servicer appointed as herein provided.
"Servicer Remittance Date": With respect to any Distribution Date, the
Business Day preceding such Distribution Date.
"Servicer Remittance Report": A report prepared by the Servicer and/or
the Special Servicer in such media as may be agreed upon by the Servicer, the
Special Servicer and the Trustee containing such information regarding the
Loans as will permit the Trustee to calculate the amounts to be distributed
pursuant to Section 4.01 and to furnish statements to Certificateholders
pursuant to Section 4.02, including information on the outstanding principal
balances of each Loan specified therein, and containing such additional
information as the Servicer, the Special Servicer and the Trustee may from
time to time agree.
"Servicer Watch List": A report substantially containing the
information described in Exhibit I-6 attached hereto, setting forth, among
other things, a description of (i) any Loan that, as of the Determination
Date immediately preceding the preparation of such report, is in jeopardy of
becoming a Specially Serviced Loan and (ii) any Construction Loan as provided
in Section 4.02(b).
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03.
"Servicing Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses (including attorneys' fees and expenses and fees
of real estate brokers) incurred by the Servicer in connection with the
servicing and administering of (a) a Loan in respect of which a default,
delinquency or other unanticipated event has occurred or is reasonably
foreseeable or (b) an REO Property, including, but not limited to, the cost
of (i) compliance with the Servicer's obligations set forth in
Section 3.03(c), (ii) the preservation, restoration and protection of a
Mortgaged Property, (iii) obtaining any Insurance and Condemnation Proceeds
or any Liquidation Proceeds of the nature described in clauses (i) through
(iv) of the definition of "Liquidation Proceeds", (iv) any enforcement or
judicial proceedings with respect to a Mortgaged Property, including
foreclosures, (v) the operation, leasing, management, maintenance and
liquidation of any REO Property, (vi) any Appraisal, and (vii) any "forced
placed" insurance policy purchased.
"Servicing Fee": With respect to each Loan and REO Loan, the fee
payable to the Servicer pursuant to the first paragraph of Section 3.11(a).
"Servicing Fee Rate": With respect to each Loan, Specially Serviced
Loan, and REO Loan, a rate equal to 0.03% per annum computed on the basis of
a 360-day year consisting of twelve 30-day months on the Stated Principal
Balance of the related Loan.
"Servicing Fee Reimbursement Amount": With respect to any of Loan Nos.
3, 35, 41, 42, 43, 48, 62, 78, 103 and 116 and any related Mortgage Interest
Accrual Period, the product of the related Servicing Fee Reimbursement Rate
and the Stated Principal Balance of such Loan for such Mortgage Interest
Accrual Period (or portion thereof, as applicable).
"Servicing Fee Reimbursement Rate": With respect to Loan No. 3, 0.02%
per annum; with respect to each of Loan Nos. 35, 41, 42, 43, 48, 62, 78, 103
and 116, 0.03% per annum;.
"Servicing Officer": Any officer and/or employee of the Servicer or the
Special Servicer involved in, or responsible for, the administration and
servicing of the Loans, whose name and specimen signature appear on a list of
servicing officers furnished by the Servicer to the Trustee and the Depositor
on the Closing Date as such list may be amended from time to time thereafter.
"Servicing Standard": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Loan, the occurrence of
any of the following events:
(i) a payment default shall have occurred on such Loan at its
maturity date; or
(ii) any Monthly Payment (other than a Balloon Payment) is 60 days
or more delinquent; or
(iii) the Servicer determines that a payment default has occurred or
is imminent and is not likely to be cured by the related Mortgagor
within 60 days; or
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law or the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets
and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs is entered against the related Mortgagor;
provided that if such decree or order is discharged or stayed within 60
days of being entered, such Loan shall not be a Specially Serviced Loan
(and no Special Servicing Fees, Workout Fees or Liquidation Fees will be
payable with respect thereto); or
(v) the related Mortgagor shall file for or consent to the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities
or similar proceedings of or relating to such Mortgagor or of or
relating to all or substantially all of its property; or
(vi) the related Mortgagor shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make
an assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(vii) the Servicer has received notice of the foreclosure or
proposed foreclosure of any lien on the related Mortgaged Property; or
(viii) any other default has occurred which has materially and
adversely affected the value of the related Loan and has continued
unremedied for the applicable grace period specified in the related
Mortgage.
(ix) The occurrence of a Credit Lease Enhancement Policy
Termination Event (as defined in Section 3.31(e)).
"Significant Loan": Any Loan (i) whose principal balance is $20,000,000
or more or (ii) that is (a) a Loan, (b) a Loan that is part of a group of
Crossed Loans or (c) a Loan that is part of a group of Loans made to
affiliated Borrowers, which Loan (in the case of clause (a)) or group of
Loans (in the case of clause (b) or clause (c)) represents 5% or more of the
aggregate outstanding principal balances of all of the Loans.
"Similar Law": As defined in Section 5.02(c).
"Special Servicer": Lennar Partners, Inc., a Florida corporation, or
any successor special servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced Loan
and REO Loan, the fee payable to the Special Servicer pursuant to the first
paragraph of Section 3.11(b).
"Special Servicing Fee Rate": With respect to each Specially Serviced
Loan and each REO Loan, 0.25% per annum computed on the basis of the Stated
Principal Balance of the related Loan and for the same period for which any
related interest payment on the related Specially Serviced Loan is computed.
"Specially Serviced Loan": As defined in Section 3.01(a).
"Startup Day": The Closing Date.
"State Tax Laws": The laws of the states of Florida, New York and North
Carolina as well as any state the applicability of which to the Trust Fund or
the REMICs shall have been confirmed to the Trustee in writing either by the
delivery to the Trustee of an Opinion of Counsel to such effect (which
Opinion of Counsel shall not be at the expense of the Trustee), or by the
delivery to the Trustee of a written notification to such effect by the
taxing authority of such state.
"Stated Principal Balance": With respect to any Loan (other than an REO
Loan), as of any date of determination, an amount equal to (x) the Cut-off
Date Principal Balance of such Loan, plus (y) any Mortgage Deferred Interest
added to the principal balance of such Loan on or before the end of the
immediately preceding Due Period, minus (z) the sum of:
(i) the principal portion of each Monthly Payment due on such Loan
after the Cut-off Date, to the extent received from the Mortgagor or
advanced by the Servicer or Trustee, as applicable, and distributed to
Certificateholders on or before such date of determination;
(ii) all Principal Prepayments received with respect to such Loan
after the Cut-off Date, to the extent distributed to Certificateholders
on or before such date of determination;
(iii) the principal portion of all Insurance and Condemnation
Proceeds and Liquidation Proceeds received with respect to such Loan
after the Cut-off Date, to the extent distributed to Certificateholders
on or before such date of determination; and
(iv) any reduction in the outstanding principal balance of such
Loan resulting from a Deficient Valuation that occurred prior to the end
of the Due Period for the most recent Distribution Date.
With respect to any REO Loan, as of any date of determination, an amount
equal to (x) the Stated Principal Balance of the predecessor Loan as of the
related REO Acquisition Date, minus (y) the sum of:
(i) the principal portion of any P&I Advance made with respect to
the predecessor Loan on or after the related REO Acquisition Date, to
the extent distributed to Certificateholders on or before such date of
determination; and
(ii) the principal portion of all Insurance and Condemnation
Proceeds, Liquidation Proceeds and REO Revenues received with respect to
such REO Loan, to the extent distributed to Certificateholders on or
before such date of determination.
A Loan or an REO Loan shall be deemed to be part of the Trust Fund and
to have an outstanding Stated Principal Balance until the Distribution Date
on which the payments or other proceeds, if any, received in connection with
a Liquidation Event in respect thereof are to be distributed to
Certificateholders.
"Sub-Account": With respect to any Construction Loan, any one of the
sub-accounts of the Construction Loan Servicing Account established for such
Construction Loan pursuant to Section 3.25.
"Subordinate Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class I or Class J Certificate.
"Sub-Servicer": Any Person with which the Servicer or the Special
Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The subservicing agreement between the
Servicer or the Special Servicer, as the case may be, and any Sub-Servicer
relating to servicing and administration of Loans by such Sub-Servicer as
provided in Section 3.22.
"Substantial Completion": With respect to any Construction Loan, the
date by which (i) all work required by the Project Plans and Specifications
for such Construction Loan (except for (x) Tenant improvements, Punch List
Items and minor items that can be fully completed without materially
interfering with the use of the CVS Improvements and (y) other items that
because of the season, weather or nature of the items are not practical to
complete at the time) has been completed and (ii) the related Tenant has
taken occupancy of the CVS Improvements and commenced operation of a retail
drug store thereon.
"Successor Manager": As defined in Section 3.19(b).
"Tax Returns": The federal income tax return on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor
forms, to be filed on behalf of each of the Upper-Tier REMIC and the Lower-
Tier REMIC due to its classification as a REMIC under the REMIC Provisions,
and Form 1041 for the portions of the Trust Fund intended to be treated as a
grantor trust for federal income tax purposes pursuant to Section 407 of the
Code, together with any and all other information, reports or returns that
may be required to be furnished to the Certificateholders or filed with the
Internal Revenue Service or any other governmental taxing authority under any
applicable provisions of federal, state or local tax laws.
"Tenant": With respect to any Construction Loan, the tenant under the
related Construction Loan Lease.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit": As defined in Section 5.02(d).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Transferor Letter": As defined in Section 5.02(d).
"Treasury Rate": With respect to any Principal Prepayment made on a
Loan, the yield calculated by the linear interpolation of the yields reported
in Federal Reserve Statistical Release H.15 Selected Interest Rates (the
"Release") under the heading "U.S. government securities" and the subheading
"Treasury constant maturities" for the week ending immediately before the
related Prepayment Date, of U.S. Treasury constant maturities with maturity
dates (one longer and one shorter) most nearly approximating the Maturity
Date of such Loan (or, if such Loan is an ARD Loan, the related Anticipated
Repayment Date). In the event the Release is no longer published, the
Servicer shall select a comparable publication to determine the Treasury Rate
in its reasonable discretion.
"Trust Fund": The segregated pool of assets subject hereto,
constituting the Trust, consisting of: (i) the Loans subject to this
Agreement and all interest and principal received or receivable on or with
respect to the Loans (other than payments of principal and interest due and
payable on the Loans on or before the Cut-off Date and Principal Prepayments
paid on or before the Cut-off Date), together with all documents included in
the related Mortgage Files; (ii) such funds or assets as from time to time
are deposited in the Certificate Account, the Distribution Accounts, the
Excess Interest Distribution Account, the Yield Protection Payment Account,
the Interest Reserve Account and, if established, the REO Account; (iii) any
REO Property; (iv) the rights of the mortgagee under all Insurance Policies
with respect to the Loans and (v) the rights of the Depositor under the
Mortgage Loan Purchase Agreement.
"Trustee": Norwest Bank Minnesota, National Association, a national
banking association, in its capacity as trustee and its successors in
interest, or any successor trustee appointed as herein provided.
"Trustee Exception Report": As defined in Section 2.02(e).
"Trustee Fee": The fee to be paid to the Trustee as compensation for
the Trustee's activities under this Agreement.
"Trustee Fee Rate": A rate equal to 0.0015% per annum computed on the
basis of a 360-day year consisting of twelve 30-day months on the Stated
Principal Balance of the related Loan.
"UCC": The Uniform Commercial Code, as enacted in each applicable
state.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the UCC, as in effect in the relevant jurisdiction.
"Uncertificated Lower-Tier Interests": Any of the Class LA-1, Class LA-
2, Class LA-3, Class LB, Class LC, Class LD, Class LE, Class LF, Class LG,
Class LH, Class LI and Class LJ Uncertificated Interests.
"Uncovered Prepayment Interest Shortfall Amount": As to any
Distribution Date, the amount by which (i) the sum of the Prepayment Interest
Shortfalls, if any, for such Distribution Date exceeds (ii) the aggregate
reduction in the Servicer's compensation for such Distribution Date pursuant
to the last paragraph of Section 3.11(a).
"Underwritten Debt Service Coverage Ratio": With respect to any Loan,
the ratio of (i) Underwritten Net Cash Flow produced by the related Mortgaged
Property to (ii) the aggregate amount of the Monthly Payments due for the
twelve-month period immediately following the Cut-off Date.
"Underwritten Net Cash Flow": With respect to any Loan, the estimated
annual revenue derived from the use and operation of the related Mortgaged
Property, less estimated annual expenses, including operating expenses (such
as utilities, administrative expenses, repairs and maintenance, management
fees and advertising), fixed expenses (such as insurance and real estate
taxes) and replacement reserves and any other reserves or deduction from
revenue taken into account in connection with the origination of such Loan.
"Underwriter": Credit Suisse First Boston Corporation.
"Unpaid Interest Shortfall Amount": As to the first Distribution Date
and any Class of Regular Certificates, zero. As to any Distribution Date
after the first Distribution Date and any Class of Regular Certificates, the
amount, if any, by which the sum of the Interest Shortfall Amounts for such
Class for prior Distribution Dates exceeds the sum of the amounts distributed
on such Class on prior Distribution Dates in respect of such Interest
Shortfall Amounts.
"Upper-Tier Distribution Account": The segregated account or accounts
created and maintained by the Trustee, pursuant to Section 3.04(b) in trust
for the Certificateholders, which shall be entitled "Norwest Bank Minnesota,
National Association, as Trustee, in trust for the registered Holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 1997-C2, Upper-Tier Distribution Account".
Any such account or accounts shall be an Eligible Account.
"Upper-Tier REMIC": One of the two separate REMICs comprising the Trust
Fund, the assets of which consist of the Uncertificated Lower-Tier Interests
and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or
under the laws of, the United States or any State thereof or the District of
Columbia (other than a partnership that is not treated as a United States
person under any applicable Treasury regulations), or an estate whose income
from sources without the United States is includible in gross income for
United States federal income tax purposes regardless of its connection with
the conduct of a trade or business within the United States, or a trust if a
court within the United States is able to exercise primary supervision over
the administration of the trust and one or more United States persons have
authority to control all substantial decisions of the trust. Notwithstanding
the preceding sentence, to the extent provided in regulations, certain trusts
in existence on August 20, 1996 and treated as United States persons prior to
such date that elect to continue to be so treated also shall be considered
U.S. Persons.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the
term of this Agreement and for any date of determination, the Voting Rights
shall be allocated among the various Classes of Certificateholders as
follows: (i) 2% in the case of the Class A-X Certificates, and (ii) in the
case of any other Class of Regular Certificates a percentage equal to the
product of 98% and a fraction, the numerator of which is equal to the
aggregate Certificate Balance of such Class, in each case, determined as of
the Distribution Date immediately preceding such date of determination, and
the denominator of which is equal to the aggregate Certificate Balance of the
Regular Certificates, each determined as of the Distribution Date immediately
preceding such date of determination. None of the Class V-1, Class R or
Class LR Certificates will be entitled to any Voting Rights. For purposes of
determining Voting Rights, the Certificate Balance of any Class shall be
deemed to be reduced by allocation of the Collateral Support Deficit to such
Class. Voting Rights allocated to a Class of Certificateholders shall be
allocated among such Certificateholders in proportion to the Percentage
Interests evidenced by their respective Certificates.
"Weighted Average Net Mortgage Rate": As to any Distribution Date, the
average, as of such Distribution Date, of the Net Mortgage Pass-Through Rates
of the Loans, weighted by the Stated Principal Balances thereof.
"Withheld Amounts": As defined in Section 3.30(a).
"Workout Fee": The fee paid to the Special Servicer with respect to
each Corrected Loan.
"Workout Fee Rate": as defined in Section 3.11(b).
"Yield Maintenance Charge": With respect to any Loan, the yield
maintenance charge set forth in the related Loan.
"Yield Protection Payment": As to any Distribution Date identified on
Exhibit L hereto and all Additional Collateral Prepayment Amounts prepaid in
the Due Period preceding such Distribution Date, the sum of (i) two percent
of the sum of such Additional Collateral Prepayment Amounts (such amount, the
"Regular Yield Protection Payment Amount") and (ii) the product of the sum of
such Additional Collateral Prepayment Amounts and the percentage set forth on
Exhibit L hereto with respect to such Distribution Date (such product, the
"Class A-X Yield Protection Payment Amount"). Yield Protection Payments are
assets of the Trust Fund, but shall not be assets of the Lower-Tier REMIC or
the Upper-Tier REMIC formed hereunder.
"Yield Protection Payment Account": The trust account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.04(d), which shall be entitled "Norwest Bank Minnesota,
National Association, as Trustee, in trust for Holders of Credit Suisse First
Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1997-C2, Yield Protection Payment Account" and which
shall be an Eligible Account. The Yield Protection Payment Account shall not
be an asset of the Lower-Tier REMIC or the Upper-Tier REMIC formed hereunder.
"Yield Protection Payment Advance": As defined in Section 4.03(g).
"Yield Rate": With respect to any Loan, the yield rate set forth in the
related Loan documents.
SECTION 1.02. Certain Calculations.
--------------------
(a) Unless otherwise specified herein, for purposes of determining
amounts with respect to the Certificates and the rights and obligations of
the parties hereto, the following provisions shall apply:
(i) All calculations of interest with respect to the Loans (other
than the Actual/360 Loans) and of Advances provided for herein shall be
made on the basis of a 360-day year consisting of twelve 30-day months.
All calculations of interest with respect to the Actual/360 Loans and
Advances provided for herein shall be made as set forth in such Loan
with respect to the calculation of interest accruing at the related
Mortgage Rate.
(ii) Any Loan payment is deemed to be received on the date such
payment is actually received by the Servicer, the Special Servicer or
the Trustee; provided, however, that for purposes of calculating
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distributions on the Certificates, (i) any voluntary Principal Prepayment
made on a date other than the related Due Date and in connection with
which the Servicer has collected interest thereon through the end of the
related Mortgage Interest Accrual Period shall be deemed to have been
made, and the Servicer shall apply such Principal Prepayment to reduce
the outstanding principal balance of the related Loan as if such
Principal Prepayment had been received, on the following Due Date and
(ii) all other Principal Prepayments with respect to any Loan are deemed
to be received on the date they are applied to reduce the outstanding
principal balance of such Loan.
(iii) Any reference to the Certificate Balance of any Class of
Certificates on or as of a Distribution Date shall refer to the
Certificate Balance of such Class of Certificates on such Distribution
Date after giving effect to (a) any distributions made on such
Distribution Date pursuant to Section 4.01(a), (b) any Collateral
Support Deficit allocated to such Class on such Distribution Date
pursuant to Section 4.04 and (c) the addition of any Certificate
Deferred Interest allocated to such Class and added to such Certificate
Balance pursuant to Section 4.06(b) (except that no such increase in
Certificate Balance pursuant to this clause (c) shall count for the
purposes of determining Voting Rights or the identity of the Controlling
Class).
(b) With respect to any Loan requiring the payment of a Yield
Maintenance Charge in connection with a Principal Prepayment on such Loan,
the Servicer shall, in accordance with the Servicing Standard (to the extent
consistent with the related Loan Documents), calculate such Yield Maintenance
Charge as an amount equal to the greater of (i) the amount, if any, by which
(A) the present value, as of the related Prepayment Date, of the scheduled
payments of principal and interest remaining on such Loan from such
Prepayment Date through the related Maturity Date (or, if such Loan is an ARD
Loan, through the related Anticipated Repayment Date (including an amount
equal to the outstanding principal balance of such Loan on the earlier of
such Maturity Date or Anticipated Repayment Date, as applicable) exceeds (B)
the amount of such Principal Prepayment and (ii) the Yield Maintenance Charge
set forth in the related Loan Documents. The present value of the scheduled
payments of principal and interest referred to in the preceding sentence
shall be determined by discounting such payments at the Discount Rate.
SECTION 1.03. Loan Identification Convention.
-------------------------------
Loans shall be identified in this Agreement by reference to their
respective loan numbers, as set forth under the column heading "Loan No." in
Annex A to the Prospectus Supplement.
SECTION 1.04. Construction Loan Servicing Account Convention.
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Funds on deposit in the Construction Loan Servicing Account and
allocated to a given Construction Loan and a given Sub-Account shall be
referred to herein as being on deposit in such Sub-Account.
(End of Article I)
ARTICLE II
CONVEYANCE OF LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
---------------------------------
SECTION 2.01. Conveyance of Loans.
-------------------
(a) The Depositor, concurrently with the execution and delivery hereof,
does hereby assign, sell, transfer, set over and otherwise convey to the
Trustee, without recourse, for the benefit of the Certificateholders all the
right, title and interest of the Depositor, including any security interest
therein for the benefit of the Depositor, in, to and under (i) the Loans
identified on the Mortgage Loan Schedule, (ii) the Mortgage Loan Purchase
Agreement and (iii) all other assets included or to be included in the Trust
Fund. Such assignment includes all interest and principal received or
receivable on or with respect to the Loans (other than payments of principal
and interest due and payable on the Loans on or before the Cut-off Date and
Principal Prepayments paid on or before the Cut-off Date). The transfer of
the Loans and the related rights and property accomplished hereby is absolute
and, notwithstanding Section 10.07, is intended by the parties to constitute
a sale.
(b) In connection with the Depositor's assignment pursuant to subsection
(a) above, the Depositor shall direct, and hereby represents and warrants
that it has directed, the Mortgage Loan Seller pursuant to the Mortgage Loan
Purchase Agreement to deliver to and deposit with, or cause to be delivered
to and deposited with, the Trustee or a Custodian appointed thereby (with a
copy to the Servicer), on or before the Closing Date, the Mortgage File for
each Loan so assigned. If the Mortgage Loan Seller cannot deliver, or cause
to be delivered as to any Loan, the original Note, the Mortgage Loan Seller
shall deliver a copy or duplicate original of such Note, together with an
affidavit in the form attached as Exhibit K hereto, certifying that the
original thereof has been lost or destroyed.
If the Mortgage Loan Seller cannot deliver, or cause to be delivered, as
to any Loan, any of the documents and/or instruments referred to in clauses
(ii), (iv), (vi), (viii), (xi) and (xii) of the definition of "Mortgage
File," with evidence of recording thereon, solely because of a delay caused
by the public recording office where such document or instrument has been
delivered for recordation, the delivery requirements of the Mortgage Loan
Purchase Agreement and this Section 2.01(b) shall be deemed to have been
satisfied and such non-delivered document or instrument shall be deemed to
have been included in the Mortgage File, provided that a photocopy of such
non-delivered document or instrument (certified by the Mortgage Loan Seller
to be a true and complete copy of the original thereof submitted for
recording) is delivered to the Trustee or a Custodian and the Servicer on or
before the Closing Date, and either the original of such non-delivered
document or instrument, or a photocopy thereof (certified by the appropriate
county recorder's office to be a true and complete copy of the original
thereof submitted for recording), with evidence of recording thereon, is
delivered to the Trustee or a Custodian within 120 days of the Closing Date,
which period may be extended up to two times, in each case for an additional
period of 45 days provided that the Mortgage Loan Seller is, as certified in
writing to the Trustee prior to each such 45-day extension, in good faith
attempting to obtain from the appropriate county recorder's office such
original or photocopy.
If the Mortgage Loan Seller cannot deliver, or cause to be delivered, as
to any Loan, any of the documents and/or instruments referred to in clauses
(ii), (iv), (vi), (viii), (xi) and (xii) of the definition of "Mortgage
File," with evidence of recording thereon, for any other reason, including,
without limitation, that such non-delivered document or instrument has been
lost, the delivery requirements of the Mortgage Loan Purchase Agreement and
this Section 2.01(b) shall be deemed to have been satisfied and such non-
delivered document or instrument shall be deemed to have been included in the
Mortgage File, provided that a photocopy of such non-delivered document or
instrument (with evidence of recording thereon and certified by the
appropriate county recorder's office to be a true and complete copy of the
original thereof submitted for recording) is delivered to the Trustee or a
Custodian appointed thereby and to the Servicer on or before the Closing
Date.
Neither the Trustee nor any Custodian shall in any way be liable for any
failure by the Mortgage Loan Seller or the Depositor to comply with the
delivery requirements of the Mortgage Loan Purchase Agreement and this
Section 2.01(b). Notwithstanding the foregoing, in the event that the
Mortgage Loan Seller fails to deliver a UCC-2 or UCC-3 on or before the
Closing Date as required above solely because the related UCC-1 has not been
returned to the Mortgage Loan Seller by the applicable filing office, the
Mortgage Loan Seller shall not be in breach of its obligations with respect
to such delivery, provided that the Mortgage Loan Seller promptly forwards
such UCC-1 to the Servicer (with a copy to the Trustee) upon its return.
(c) The Servicer shall, as to each Loan, use its best efforts to
promptly (and in any event no later than the later of (i) 90 days after the
Closing Date and (b) 45 days from receipt of documents in recordable form)
cause to be submitted for recording or filing, as the case may be, each
assignment referred to in clauses (ii), (iii), (iv), (v) and (vii) of the
definition of "Mortgage File" and each UCC-2 or UCC-3 referred to in clause
(xi) of the definition of "Mortgage File." Each such assignment shall
reflect that it should be returned by the public recording office to the
Servicer following recording, and each such UCC-2 or UCC-3 shall reflect that
the file copy thereof should be returned to the Trustee following filing. If
any such document or instrument is lost or returned unrecorded or unfiled
because of a defect therein, the Servicer shall prepare or cause to be
prepared a substitute therefor or cure such defect, as the case may be, and
thereafter the Servicer shall upon receipt thereof cause the same to be duly
recorded or filed, as appropriate. Within 30 days following request
therefor, the Depositor shall reimburse or cause to reimburse the Servicer
for all of its cost and expenses incurred in performing its obligation under
this Section 2.01(c).
(d) All documents and records in the Depositor's or the Mortgage Loan
Seller's possession relating to the Loans (including financial statements,
operating statements and any other information provided by the respective
Mortgagor from time to time) that are not required to be a part of a Mortgage
File in accordance with the definition thereof shall be delivered to the
Servicer within 30 days of the Closing Date and shall be held by the Servicer
on behalf of the Trustee in trust for the benefit of the Certificateholders.
(e) In connection with the Depositor's assignment pursuant to subsection
(a) above, the Depositor shall deliver, and hereby represents and warrants
that it has delivered, to the Trustee and the Servicer, on or before the
Closing Date, a fully executed original counterpart of the Mortgage Loan
Purchase Agreement, as in full force and effect, without amendment or
modification, on the Closing Date.
(f) The Depositor shall use its best efforts to require that, promptly
after the Closing Date, but in all events within three Business Days after
the Closing Date, the Mortgage Loan Seller shall cause all funds on deposit
in escrow accounts maintained with respect to the Loans in the name of the
Mortgage Loan Seller or any other name to be transferred to the Servicer (or
a Sub-Servicer at the direction of the Servicer) for deposit into Servicing
Accounts.
SECTION 2.02. Acceptance by Trustee.
---------------------
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges receipt by it or a Custodian on its behalf, subject to the
provisions of Sections 2.01 and 2.02(d), to any exceptions noted on the
Trustee Exception Report, and to the further review provided for in Section
2.02(b), of the documents specified in clauses (i)-(v), (viii), (ix), (xi),
(xii) and (xiii) of the definition of "Mortgage File" with respect to each
Loan, of a fully executed original counterpart of the Mortgage Loan Purchase
Agreement and of all other assets included in the Trust Fund, in good faith
and without notice of any adverse claim, and declares that it or a Custodian
on its behalf holds and will hold such documents and any other documents
delivered or caused to be delivered by the Mortgage Loan Seller constituting
the Mortgage Files, and that it holds and will hold such other assets
included in the Trust Fund, in trust for the exclusive use and benefit of all
present and future Certificateholders.
(b) Within 60 days of the Closing Date, the Trustee or a Custodian on
its behalf shall review each of the Loan documents delivered or caused to be
delivered by the Mortgage Loan Seller constituting the Mortgage Files; and,
promptly following such review (but in no event later than 90 days after the
Closing Date), the Trustee shall, subject to Sections 2.01 and 2.02(d),
certify in writing to each of the Depositor, the Servicer, the Special
Servicer and the Mortgage Loan Seller that, as to each Loan listed in the
Mortgage Loan Schedule (other than any Loan paid in full or any Loan
specifically identified in any exception report annexed thereto as not being
covered by such certification), (i) all documents specified in clauses (i) -
(v), (viii), (ix), (xi), (xii) and (xiii) of the definition of "Mortgage
File" are in its possession, (ii) all documents delivered or caused to be
delivered by the Mortgage Loan Seller constituting the Mortgage Files have
been reviewed by it or by a Custodian on its behalf and appear regular on
their face and appear to relate to such Loan, and (iii) based on such
examination and only as to the foregoing documents, the information set forth
in the Mortgage Loan Schedule with respect to the items specified in clauses
(i), (iv), (vi), (viii)(a) and (viii)(c) of the definition of "Mortgage Loan
Schedule" is correct.
(c) The Trustee or a Custodian on its behalf shall review each of the
Loan documents received thereby subsequent to the Closing Date; and, on or
about the first anniversary of the Closing Date, the Trustee shall, subject
to Sections 2.01 and 2.02(d), certify in writing to each of the Depositor,
the Servicer, the Special Servicer and the Mortgage Loan Seller that, as to
each Loan listed on the Mortgage Loan Schedule (other than any Loan as to
which a Liquidation Event has occurred or any Loan specifically identified in
any exception report annexed thereto as not being covered by such
certification), (i) all documents specified in clauses (i) - (v), (viii),
(ix), (xi), (xii) and (xiii) of the definition of "Mortgage File" are in its
possession, (ii) it or a Custodian on its behalf has received either a
recorded original of each of the assignments specified in clause (iii) and
clause (v) of the definition of "Mortgage File", insofar as an unrecorded
original thereof had been delivered or caused to be delivered by the Mortgage
Loan Seller or a copy of such recorded original certified by the applicable
public recording office to be true and complete, (iii) all Loan documents
received by it or any Custodian have been reviewed by it or by such Custodian
on its behalf and appear regular on their face and appear to relate to such
Loan and (iv) based on the examinations referred to in subsection (b) above
and this subsection (c) and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses (i), (iv), (vi), (viii)(a) and (viii)(c) of the
definition of "Mortgage Loan Schedule" is correct.
(d) It is herein acknowledged that neither the Trustee nor any Custodian
is under any duty or obligation (i) to determine whether any of the documents
specified in clauses (vi), (vii), (x), (xiv), (xv), (xvi), (xvii) and
(xviii) of the definition of "Mortgage File" exist or are required to be
delivered by the Depositor, the Mortgage Loan Seller or any other Person or
(ii) to inspect, review or examine any of the documents, instruments,
certificates or other papers relating to the Loans delivered to it to
determine that the same are valid, legal, effective, in recordable form,
genuine, enforceable, sufficient or appropriate for the represented purpose
or that they are other than what they purport to be on their face.
(e) If, in the process of reviewing the Mortgage Files or at any time
thereafter, the Trustee or any Custodian finds any document or documents
constituting a part of a Mortgage File not to have been properly executed or,
to contain information that does not conform in any material respect with the
corresponding information set forth in the Mortgage Loan Schedule or to be
defective on its face (each, a "Defect" in the related Mortgage File), the
Trustee shall promptly so notify the Depositor, the Servicer, the Special
Servicer and the Mortgage Loan Seller (and in no event later than 90 days
after the Closing Date), by providing a written report (the "Trustee
Exception Report") setting forth for each affected Loan, with particularity,
the nature of such Defect.
SECTION 2.03. Representations, Warranties and Covenants of the
------------------------------------------------
Depositor; Mortgage Loan Seller's Repurchase of Loans for Defects in Mortgage
- -----------------------------------------------------------------------------
Files and Breaches of Representations and Warranties.
- ----------------------------------------------------
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
and the Depositor has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement by it, and has
the power and authority to execute, deliver and perform this Agreement
and all the transactions contemplated hereby, including, but not limited
to, the power and authority to sell, assign and transfer the Loans in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this
Agreement by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally,
and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulations to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Depositor or any
indenture, agreement or instrument to which the Depositor is a party or
by which it is bound, or any order or decree applicable to the
Depositor, or result in the creation or imposition of any lien on any of
the Depositor's assets or property, which would materially and adversely
affect the ability of the Depositor to carry out the transactions
contemplated by this Agreement; the Depositor has obtained any consent,
approval, authorization or order of any court or governmental agency or
body required for the execution, delivery and performance by the
Depositor of this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or
by or before any other governmental agency or instrumentality which
would materially and adversely affect the validity of the Loans or the
ability of the Depositor to carry out the transactions contemplated by
this Agreement;
(v) The Depositor is the lawful owner of the Loans with the full
right to transfer the Loans to the Trust Fund and upon the assignment of
the Loans to the Trust, the Loans will be validly transferred to the
Trust; and
(vi) Following consummation of the conveyance of the Loans by the
Depositor to the Trustee, the Depositor shall take no action
inconsistent with the Trust Fund's ownership of the Loans, and if a
third party, including a potential purchaser of the Loans, should
inquire, the Depositor shall promptly indicate that the Loans have been
sold and shall claim no ownership interest therein.
(b) If any Certificateholder, the Servicer, the Special Servicer or the
Trustee discovers or receives notice of a Defect in any Mortgage File or a
breach of any representation or warranty set forth in, or required to be made
with respect to a Loan by the Mortgage Loan Seller pursuant to, the Mortgage
Loan Purchase Agreement (a "Breach"), which Defect or Breach, as the case may
be, materially and adversely affects the value of any Loan or the interests
of the Certificateholders therein, such Certificateholder, the Servicer, the
Special Servicer or the Trustee, as applicable, shall give prompt written
notice of such Defect or Breach, as the case may be, to the Depositor, the
Servicer, the Special Servicer and the Mortgage Loan Seller and shall request
that the Mortgage Loan Seller, not later than the earlier of 90 days from the
Mortgage Loan Seller's receipt of such notice or the Mortgage Loan Seller's
discovery of such Breach, cure such Defect or Breach, as the case may be, in
all material respects or repurchase the affected Loan at the applicable
Purchase Price or in conformity with the Mortgage Loan Purchase Agreement.
Any Defect or Breach which causes any Loan not to be a "qualified mortgage"
(within the meaning of Section 860G(a)(3) of the Code) shall be deemed to
materially and adversely affect the interest of Certificateholders therein.
If the affected Loan is to be repurchased, the Trustee shall designate the
Certificate Account as the account into which funds in the amount of the
Purchase Price are to be deposited by wire transfer.
(c) In connection with any repurchase of a Loan contemplated by this
Section 2.03, the Trustee, the Servicer and the Special Servicer shall each
tender to the Mortgage Loan Seller, upon delivery to each of the Trustee, the
Servicer and the Special Servicer of a trust receipt executed by the Mortgage
Loan Seller, all portions of the Mortgage File and other documents pertaining
to such Loan possessed by it, and each document that constitutes a part of
the Mortgage File that was endorsed or assigned to the Trustee shall be
endorsed or assigned, as the case may be, to the Mortgage Loan Seller in the
same manner as provided in Section 7 of the Mortgage Loan Purchase Agreement.
(d) Section 7 of the Mortgage Loan Purchase Agreement provides the sole
remedy available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Defect in a Mortgage File or any Breach of
any representation or warranty set forth in or required to be made pursuant
to Section 2 of such Mortgage Loan Purchase Agreement.
(e) If the Mortgage Loan Seller defaults on its obligations to
repurchase any Loan as contemplated by Section 2.03(b), the Trustee shall
promptly notify the Certificateholders, the Rating Agencies, the Servicer and
the Special Servicer of such default. The Trustee shall enforce the
obligations of the Mortgage Loan Seller under Section 7 of the Mortgage Loan
Purchase Agreement. Such enforcement, including, without limitation, the
legal prosecution of claims, shall be carried out in such form, to such
extent and at such time as if it were, in its individual capacity, the owner
of the affected Loan(s). The Trustee shall be reimbursed for the reasonable
costs of such enforcement: first, from a specific recovery of costs, expenses
or attorneys' fees against the Mortgage Loan Seller; second, pursuant to
Section 3.05(a)(vii) out of the related Purchase Price, to the extent that
such expenses are a specific component thereof; and third, if at the
conclusion of such enforcement action it is determined that the amounts
described in clauses first and second are insufficient, then pursuant to
Section 3.05(a)(viii) out of general collections on the Loans on deposit in
the Certificate Account.
SECTION 2.04. Execution of Certificates.
-------------------------
Subject to Sections 2.01 and 2.02, the Trustee hereby acknowledges the
assignment to it of the Loans and the delivery to it or a Custodian on its
behalf of the Mortgage Files and a fully executed original counterpart of the
Mortgage Loan Purchase Agreement, together with the assignment to it of all
other assets included in the Trust Fund. Concurrently with such assignment
and delivery and in exchange therefor, the Trustee acknowledges the issuance
of the Uncertificated Lower-Tier Interests to the Depositor and, pursuant to
the written request of the Depositor executed by an officer of the Depositor,
the execution, authentication and delivery of the Class LR and Class V-1
Certificates to or upon the order of the Depositor, in exchange for the
Loans, receipt of which is hereby acknowledged, and immediately thereafter,
the Trustee acknowledges that, pursuant to the written request of the
Depositor executed by an officer of the Depositor, it has executed and caused
the Authenticating Agent to authenticate and to deliver to or upon the order
of the Depositor, in exchange for the Uncertificated Lower-Tier Interests,
the Regular Certificates and the Class R Certificates, and the Depositor
hereby acknowledges the receipt by it or its designees, of such Certificates
in authorized Denominations evidencing the entire beneficial ownership of the
Upper-Tier REMIC.
(End of Article II)
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
---------------------------
SECTION 3.01. Servicer to Act as Servicer; Special Servicer to Act as
-------------------------------------------------------
Special Servicer; Administration of the Loans.
- ---------------------------------------------
(a) Each of the Servicer and the Special Servicer shall diligently
service and administer the Loans (and, with respect to the Special Servicer,
any REO Properties) it is obligated to service pursuant to this Agreement on
behalf of the Trust Fund and in the best interests of and for the benefit of
the Certificateholders (as determined by the Servicer or the Special
Servicer, as the case may be, in its good faith and reasonable judgment) in
accordance with applicable law, and, to the extent consistent with the
foregoing, the terms of the respective Loans or Specially Serviced Loans,
and, to the extent consistent with the foregoing, in accordance with the
terms of this Agreement and, to the extent consistent with the foregoing, in
accordance with the higher of the following standards of care: (1) the same
manner in which, and with the same care, skill, prudence and diligence with
which, the Servicer or Special Servicer, as the case may be, services and
administers similar commercial or multifamily mortgage loans for other third-
party portfolios, giving due consideration to the customary and usual
standards of practice of prudent institutional multifamily or commercial
mortgage lenders servicing their own mortgage loans and (2) the same care,
skill, prudence and diligence with which the Servicer or Special Servicer, as
the case may be, services and administers similar commercial or multifamily
mortgage loans owned by the Servicer or Special Servicer, in either case
exercising reasonable business judgment and acting in accordance with
applicable law, the respective Loans or Specially Serviced Loans, and, to the
extent not inconsistent with the foregoing, the terms of this Agreement, as
applicable, and with a view to the maximization, on a present value basis
(discounting at the related Mortgage Rate), of timely recovery of principal
and interest on the Loans or Specially Serviced Loans, as applicable, and the
best interests of the Trust Fund and the Certificateholders, as determined by
the Servicer or Special Servicer, as the case may be, in its reasonable
judgment, but without regard to: (i) any relationship that the Servicer or
the Special Servicer, as the case may be, or any Affiliate thereof may have
with the related Mortgagor or any other party to this Agreement; (ii) the
ownership of any Certificate by the Servicer or the Special Servicer, as the
case may be, or any Affiliate thereof; (iii) the Servicer's obligation to
make Advances; (iv) the Servicer's or Special Servicer's, as the case may be,
right to receive compensation for its services hereunder or with respect to
any particular transaction; and (v) without regard to the Servicer's or the
Special Servicer's ownership, servicing or management of any other mortgage
loans or mortgaged properties (the foregoing, collectively referred to as the
"Servicing Standard").
Without limiting the foregoing, subject to Section 3.21, the Special
Servicer shall be obligated to service and administer (i) any Loans as to
which a Servicing Transfer Event has occurred and is continuing (each such
Loan, a "Specially Serviced Loan"), (ii) any REO Properties and (iii) any
Construction Loans to the extent provided in Section 3.25, regardless of
whether any Servicing Transfer Event has occurred, provided, however,
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that the Servicer shall continue to make all calculations, and prepare, or
cause to be prepared by the Special Servicer and delivered to the Trustee, all
reports to the Trustee required hereunder with respect to the Specially
Serviced Loans as if no Servicing Transfer Event had occurred and with
respect to the REO Properties (and the related REO Loans) as if no REO
Acquisition had occurred, and to render such incidental services with respect
to such Specially Serviced Loan and REO Properties as are specifically
provided for herein; provided, further, however, that the Servicer shall
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not be liable for failure to comply with such duties insofar as such
failure results from a failure of the Special Servicer to provide
sufficient information to the Servicer to comply with such duties. Each
Loan that becomes a Specially Serviced Loan shall continue as such until
satisfaction of the conditions specified in Section 3.21(a). Without
limiting the foregoing, subject to Section 3.21, the Servicer shall be
obligated to service and administer all Loans which are not Specially
Serviced Loans; provided, however, that the Special Servicer shall make
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the inspections, use its reasonable best efforts to collect the statements
and shall prepare the reports in respect of the related Mortgaged
Properties with respect to Specially Serviced Loans in accordance with
Section 3.12.
(b) Subject only to the Servicing Standard and the terms of this
Agreement and of the respective Loans, the Servicer and the Special Servicer
each shall have full power and authority, acting alone, to do or cause to be
done any and all things in connection with such servicing and administration
which it may deem necessary or desirable. Without limiting the generality of
the foregoing, each of the Servicer and the Special Servicer, in its own
name, is hereby authorized and empowered by the Trustee and obligated to
execute and deliver, on behalf of the Certificateholders and the Trustee or
any of them, with respect to each Loan it is obligated to service under this
Agreement, any and all financing statements, continuation statements and
other documents or instruments necessary to maintain the lien created by the
related Mortgage or other security document in the related Mortgage File on
the related Mortgaged Property and related collateral; subject to
Section 3.20, any and all modifications, waivers, amendments or consents to
or with respect to any documents contained in the related Mortgage File; and
any and all instruments of satisfaction or cancellation, or of partial or
full release or discharge, and all other comparable instruments. Subject to
Section 3.10, the Trustee shall furnish, or cause to be furnished, to the
Servicer or the Special Servicer any limited powers of attorney and other
documents necessary or appropriate to enable the Servicer or the Special
Servicer, as the case may be, to carry out its servicing and administrative
duties hereunder; provided, however, that the Trustee shall not be held
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liable for any negligence with respect to, or misuse of, any such power of
attorney by the Servicer or the Special Servicer.
(c) The relationship of each of the Servicer and the Special Servicer to
the Trustee under this Agreement is intended by the parties to be that of an
independent contractor and not that of a joint venturer, partner or agent.
SECTION 3.02. Collection of Loan Payments.
---------------------------
(a) Each of the Servicer and the Special Servicer shall make reasonable
efforts to collect all payments called for under the terms and provisions of
the Loans it is obligated to service hereunder, and shall follow such
collection procedures as are consistent with this Agreement (including,
without limitation, the Servicing Standard). Consistent with the foregoing,
the Servicer or the Special Servicer each may in its discretion waive any
Penalty Charge in connection with any delinquent payment on a Loan it is
obligated to service hereunder.
(b) All amounts collected on any Loan in the form of payments from
Mortgagors, Insurance and Condemnation Proceeds or Liquidation Proceeds shall
be applied to amounts due and owing under the related Note and Mortgage
(including any modifications to either of them) in accordance with the
express provisions of such Note and Mortgage (unless a payment default exists
under such Loan and such Loan permits application in the order and priority
determined by the lender) and, in the absence of such express provisions
shall be applied (after reimbursement to the Servicer, any Seller-Servicer
and/or the Trustee for any related Servicing Fees, Primary Servicing Fees and
Trustee's Fees and the application to any Primary Servicing Fee Reimbursement
Amount or Servicing Fee Reimbursement Amount, P&I Advances, Servicing
Advances and interest on Advances from such Loan): first, as a recovery
-----
of accrued and unpaid interest on such Loan at the related Mortgage Rate
(less portions thereof payable to the Servicer, Special Servicer, Trustee
or, if applicable, the related Seller-Servicer) in effect from time to time
to but not including the Due Date in the Due Period of receipt; second,
------
as a recovery of principal due under such Loan; and third, to the payment
-----
of Prepayment Premiums and Yield Maintenance Charges. Notwithstanding the
terms of any Loan, the Servicer shall not be entitled to the payment of any
Penalty Charge in excess of outstanding interest on Advances made with
respect to such Loan, except to the extent that (i) all reserves then
required to be funded pursuant to the terms of such Loan have been so
funded, (ii) all payments of principal and interest then due on such Loan
have been paid and (iii) all related operating expenses, if applicable, have
been paid to the related Lock-Box or reserved for pursuant to the related
Lock-Box Agreement. In no event shall any collections on any ARD Loan be
allocated to the payment of Excess Interest until all amounts due, or to
become due, under such ARD Loan have been paid in full. Amounts collected
on any REO Loan shall be deemed to be applied in accordance with the
definition thereof.
(c) In the event that the Servicer or Special Servicer receives, or
receives notice from the related Borrower that it will be receiving, Excess
Interest in any Due Period, the Servicer or Special Servicer, as applicable,
shall promptly notify the Trustee thereof in writing.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
--------------------------------------------------
Servicing Accounts.
- ------------------
(a) The Servicer shall establish and maintain one or more accounts (the
"Servicing Accounts"), into which all Escrow Payments shall be deposited and
retained, and shall administer such Servicing Accounts in accordance with the
related Loan Documents. Servicing Accounts shall be Eligible Accounts.
Funds on deposit in the Servicing Accounts may be invested in Permitted
Investments in accordance with the provisions of Section 3.06. Withdrawals
of amounts so deposited from a Servicing Account may be made only to:
(i) effect payment of real estate taxes, assessments, Insurance Policy
premiums, ground rents (if applicable) and other items for which funds have
been escrowed in the Servicing Accounts; (ii) reimburse the Servicer or the
Trustee for any Servicing Advances; (iii) refund to Mortgagors any sums as
may be determined to be overages; (iv) pay interest to Mortgagors on balances
in the Servicing Account, if required by applicable law or the terms of the
related Loan and as described below or, if not so required, to the Servicer;
(v) withdraw amounts deposited in error; (vi) clear and terminate the
Servicing Accounts at the termination of this Agreement in accordance with
Section 9.01; and (vii) pay the Servicer, as additional servicing
compensation in accordance with Section 3.11(a), interest and investment
income earned in respect of amounts relating to the Trust Fund held in the
Servicing Accounts as provided in Section 3.06(b) (but only to the extent of
the Net Investment Earnings with respect to the Servicing Accounts for any
period from any Distribution Date to the immediately succeeding P&I Advance
Date) and provided that the Servicer shall pay or cause to be paid to the
Mortgagors interest on funds in Servicing Accounts, to the extent required by
law or the terms of the related Loan.
(b) The Special Servicer, in the case of REO Loans and Specially
Serviced Loans, and the Servicer, in the case of all other Loans, shall
maintain accurate records with respect to each related Mortgaged Property
reflecting the status of real estate taxes, assessments and other similar
items that are or may become a lien thereon and the status of Insurance
Policy premiums and any ground rents payable in respect thereof. The Special
Servicer, in the case of REO Loans and Specially Serviced Loans, and the
Servicer, in the case of all other Loans, shall obtain all bills for the
payment of such items (including renewal premiums) and shall effect payment
thereof from the REO Account or the Servicing Accounts, or the Servicer shall
make a Servicing Advance prior to the applicable penalty or termination date
(which shall be so applied by the Servicer at the written direction of the
Special Servicer in the case of Specially Serviced Loans and REO Loans) as
allowed under the terms of the related Loan. To the extent that a Loan does
not require a Mortgagor to escrow for the payment of real estate taxes,
assessments, Insurance Policy premiums, ground rents (if applicable) and
similar items, the Special Servicer, in the case of Specially Serviced Loans
and REO Loans, and the Servicer, in the case of all other Loans, shall
require that payments in respect of such items be made by the Mortgagor at
the time they first become due.
(c) In accordance with the Servicing Standard and for all Loans, the
Servicer shall make a Servicing Advance with respect to each related
Mortgaged Property (including any REO Property) of all such funds as are
necessary for the purpose of effecting the payment of (i) real estate taxes,
assessments and other similar items that are or may become a lien thereon,
(ii) ground rents (if applicable), (iii) premiums on Insurance Policies, (iv)
operating, leasing, managing and liquidation expenses for REO Properties and
(v) environmental inspections and remediations, if any, in each instance if
and to the extent monies in the Servicing Accounts are insufficient to pay
such item when due and the related Mortgagor has failed to pay such item on a
timely basis, so long as the particular advance would not, if made,
constitute a Nonrecoverable Servicing Advance; provided, however, that with
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respect to the payment of taxes and assessments, the Servicer shall not be
required to make any such advance until the earlier of (i) five Business
Days after the Servicer has received confirmation that such item has not
been paid and (ii) the date prior to the date after which any penalty or
interest would accrue in respect of such taxes or assessments.
The Special Servicer shall give the Servicer and the Trustee not less
than five Business Days' notice before the date on which the Servicer is
required to make any Servicing Advance with respect to a given Loan or REO
Property; provided, however, that only two Business Days' notice shall be
-------- -------
required in respect of Servicing Advances required to be made on an urgent
or emergency basis (which may include, without limitation, Servicing
Advances required to make tax or insurance payments). In addition, the
Special Servicer shall provide the Servicer and the Trustee with such
information in its possession as the Servicer or the Trustee, as applicable,
may reasonably request to enable the Servicer or the Trustee, as
applicable, to determine whether a requested Servicing Advance would
constitute a Nonrecoverable Servicing Advance. Any request by the Special
Servicer that the Servicer make a Servicing Advance shall be deemed to be a
determination by the Special Servicer that such requested Servicing Advance
is not a Nonrecoverable Servicing Advance, and the Servicer shall be
entitled to conclusively rely on such determination. On the fourth
Business Day before each Distribution Date, the Special Servicer shall
report to the Servicer the Special Servicer's determination as to whether
any Servicing Advance previously made with respect to a Specially Serviced
Loan or REO Loan is a Nonrecoverable Servicing Advance. The Servicer shall
be entitled to conclusively rely on such a determination.
All such Servicing Advances shall be reimbursable in the first instance
from related collections from the Mortgagors and further as provided in
Section 3.05. No costs incurred by the Servicer or the Special Servicer in
effecting the payment of real estate taxes, assessments and, if applicable,
ground rents on or in respect of the Mortgaged Properties shall, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balances of the related
Loans, notwithstanding that the terms of such Loans so permit. If the
Servicer fails to make any required Servicing Advance as and when due to the
extent a Responsible Officer of the Trustee has been notified of such failure
in writing by the Servicer, Special Servicer or Depositor, the Trustee shall
make such Servicing Advance pursuant to Section 7.05.
(d) In connection with its recovery of any Servicing Advance out of the
Certificate Account pursuant to clauses (iv) or (v) of Section 3.05(a) or
from a Servicing Account pursuant to Section 3.03(a)(ii), each of the
Servicer and the Trustee, as the case may be, shall be entitled to receive,
out of any amounts then on deposit in the Certificate Account, interest at
the Reimbursement Rate in effect from time to time, accrued on the amount of
such Servicing Advance from and including the date made to, but not
including, the date of reimbursement. The Servicer shall reimburse itself or
the Trustee, as the case may be, for any outstanding Servicing Advance as
soon as practically possible after funds available for such purpose are
deposited in the Certificate Account.
(e) To the extent an operations and maintenance plan is required to be
established and executed pursuant to the terms of a Loan, the Servicer or,
with respect to Specially Serviced Loans, the Special Servicer shall request
from the Mortgagor written confirmation thereof within a reasonable time
after the later of the Closing Date and the date as of which such plan is
required to be established or completed. To the extent any repairs, capital
improvements, actions or remediations are required to have been taken or
completed pursuant to the terms of the Loan, the Servicer or, with respect to
Specially Serviced Loans, the Special Servicer shall request from the
Mortgagor written confirmation of such actions and remediations within a
reasonable time after the later of the Closing Date and the date as of which
such action or remediations are required to be or to have been taken or
completed. To the extent a Mortgagor shall fail to promptly respond to any
inquiry described in this Section 3.03(e), the Servicer (with respect to
Loans that are not Specially Serviced Loans) shall determine whether the
related Mortgagor has failed to perform its obligations under the related
Loan and report any such failure to the Special Servicer within a reasonable
time after the later of June 30, 1998 and the date as of which such
operations and maintenance plan is required to be established or executed or
the date as of which such actions or remediations are required to be or to
have been taken or completed.
SECTION 3.04. The Certificate Account, Distribution Accounts, Excess
------------------------------------------------------
Interest Distribution Account and Yield Protection Payment Account.
- ------------------------------------------------------------------
(a) The Servicer shall establish and maintain, or cause to be
established and maintained, the Certificate Account, in which the Servicer
shall deposit or cause to be deposited on a daily basis (and in no event
later than the Business Day following receipt of available funds), except as
otherwise specifically provided herein, the following payments and
collections received subsequent to the Cut-off Date (other than in respect of
principal and interest on the Loans due and payable on or before the Cut-off
Date) and payments (other than Principal Prepayments) received by it on or
prior to the Cut-off Date but allocable to a period subsequent thereto (in
each case other than with respect to payments and collections relating to the
Construction Loans, which payments and collections are to be deposited into
the Construction Loan Servicing Account pursuant to Section 3.25(m)):
(i) all payments on account of principal, including Principal
Prepayments, on the Loans;
(ii) all payments on account of interest on the Loans, net of the
Servicing Fees and Primary Servicing Fees (in each case net of any
amount utilized to offset Prepayment Interest Shortfalls), Penalty
Charges (net of any amount thereof utilized to offset interest on
Advances), Prepayment Premiums, Excess Interest, Yield Maintenance
Charges, Servicing Fee Reimbursement Amounts and Primary Servicing Fee
Reimbursement Amounts;
(iii) all Insurance and Condemnation Proceeds and Liquidation
Proceeds received in respect of any Loan or REO Property (other than
Liquidation Proceeds that are to be deposited in the Lower-Tier
Distribution Account pursuant to Section 9.01);
(iv) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c);
(v) any amounts required to be deposited by the Servicer pursuant
to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Certificate Account;
(vi) any amounts required to be deposited by the Servicer or the
Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard policy;
(vii) any amounts required to be deposited by the Servicer pursuant
to the last paragraph of Section 3.11(a) as a reduction in the
compensation to the Servicer to cover Prepayment Interest Shortfalls;
(viii) any Prepayment Interest Excess to which the Servicer is not
entitled as provided in Section 3.11(a); and
(ix) the Loan Servicing Remittance Amount withdrawn from the
Construction Loan Servicing Account pursuant to Section 3.25(n)(i).
The foregoing requirements for deposit in the Certificate Account shall
be exclusive, it being understood and agreed that, actual payments from
Mortgagors in the nature of Escrow Payments, charges for beneficiary
statements or demands, assumption fees, modification fees, extension fees,
amounts collected for mortgagor checks returned for insufficient funds or
other amounts that the Servicer or Special Servicer is entitled to retain as
additional servicing compensation pursuant to Section 3.11 need not be
deposited by the Servicer in the Certificate Account. If the Servicer shall
deposit in the Certificate Account any amount not required to be deposited
therein, it may at any time withdraw such amount from the Certificate
Account.
Upon receipt of any of the foregoing amounts with respect to any
Specially Serviced Loan, the Special Servicer shall remit within one (1)
Business Day such amounts to the Servicer for deposit into the Certificate
Account in accordance with the second preceding paragraph. Any amounts
received by the Special Servicer with respect to an REO Property shall be
deposited into the REO Account and remitted to the Servicer for deposit into
the Certificate Account pursuant to Section 3.16(c).
(b) The Trustee shall establish and maintain the Distribution Accounts
in trust for the benefit of the Certificateholders. The Trustee shall make
deposits in and withdrawals from the Distribution Accounts in accordance with
the terms of this Agreement. The Servicer shall deliver to the Trustee each
month on or before the P&I Advance Date therein, for deposit in the Lower-
Tier Distribution Account, that portion of the Available Distribution Amount
(calculated without regard to clauses (a)(iv), (a)(v), (a)(vi) and (c) of the
definition thereof) for the related Distribution Date then on deposit in the
Certificate Account.
The Servicer shall, as and when required hereunder, deliver to the
Trustee for deposit in the Lower-Tier Distribution Account:
(i) any P&I Advances required to be made by the Servicer in
accordance with Section 4.03 (or, if the Trustee succeeds to the
Servicer's obligations hereunder, Section 7.05);
(ii) any Liquidation Proceeds paid by the Servicer in connection
with the purchase of all of the Loans and any REO Properties in the
Trust Fund pursuant to Section 9.01 (exclusive of that portion thereof
required to be deposited in the Certificate Account pursuant to
Section 9.01);
(iii) any Yield Maintenance Charges or Prepayment Premiums; and
(iv) any other amounts required to be so delivered for deposit in
the Lower-Tier Distribution Account pursuant to any provision of this
Agreement.
The Trustee shall, upon receipt, deposit in the Lower-Tier Distribution
Account any and all amounts received by the Trustee that are required by the
terms of this Agreement to be deposited therein.
On each Distribution Date, the Trustee shall deposit in the Upper-Tier
Distribution Account an aggregate amount of immediately available funds equal
to the Lower-Tier Distribution Amount and the amount of any Prepayment
Premiums and Yield Maintenance Charges for such Distribution Date allocated
in payment of the Uncertificated Lower-Tier Interests as specified in
Sections 4.01(b) and 4.01(d), respectively.
(c) Prior to the Servicer Remittance Date relating to any Due Period in
which Excess Interest is received, the Trustee shall establish and maintain
the Excess Interest Distribution Account in the name of the Trustee in trust
for the benefit of the Holders of the Class V-1 Certificates. The Excess
Interest Distribution Account shall be established and maintained as an
Eligible Account. On or before each Servicer Remittance Date, the Servicer
shall remit to the Trustee for deposit in the Excess Interest Distribution
Account an amount equal to the Excess Interest received during the related
Due Period. On each Distribution Date, the Trustee shall withdraw the Excess
Interest from the Excess Interest Distribution Account for distribution
pursuant to Section 4.01(f). Following the distribution of Excess Interest
to Holders of the Class V-1 Certificates on the first Distribution Date after
which there are no longer any Loans outstanding which pursuant to their terms
could pay Excess Interest, the Trustee shall terminate the Excess Interest
Distribution Account.
(d) Prior to the Servicer Remittance Date relating to any Due Period in
which an Additional Collateral Prepayment Amount is prepaid, the Trustee
shall establish and maintain the Yield Protection Payment Account in the name
of the Trustee in trust for the benefit of the Holders of the Regular
Certificates. The Yield Protection Payment Account shall be established and
maintained as an Eligible Account. On or before each Servicer Remittance
Date, as required by Section 4.03(g), the Servicer shall remit to the Trustee
for deposit in the Yield Protection Payment Account the Yield Protection
Payment Advance, if any, for the related Distribution Date. On each
Distribution Date, the Trustee shall withdraw the Yield Protection Payment
from the Yield Protection Payment Account for distribution pursuant to
Section 4.01(k). Following the distribution of the Class A-X Yield
Protection Payment Amount to Holders of the Class A-X Certificates and the
distribution of the Regular Yield Protection Payment Amount to Holders of the
applicable Class of Regular Certificates, in each case on the first
Distribution Date after which all Additional Collateral has been released to
the Borrowers under the Additional Collateral Loans or collected by the
Servicer as Principal Prepayments, the Trustee shall terminate the Yield
Protection Payment Account.
(e) Funds on deposit in the Certificate Account, the Excess Interest
Distribution Account and the Yield Protection Payment Account may be invested
only in Permitted Investments in accordance with the provisions of
Section 3.06. Funds on deposit in the Upper-Tier Distribution Account and
the Lower-Tier Distribution Account shall not be invested. As of the Closing
Date, the Certificate Account shall be located at the offices of the
Servicer. The Servicer shall give notice to the Trustee, the Special
Servicer and the Depositor of any new location of the Certificate Account
prior to any change thereof. As of the Closing Date, the Upper-Tier
Distribution Account, the Lower-Tier Distribution Account, the Excess
Interest Distribution Account and the Yield Protection Payment Account shall
be located at the offices of the Trustee. The Trustee shall give notice to
the Servicer and the Depositor of any new location of the Upper-Tier
Distribution Account, the Lower-Tier Distribution Account, the Excess
Interest Distribution Account or the Yield Protection Payment Account, prior
to any change thereof.
SECTION 3.05. Permitted Withdrawals from the Certificate Account and
------------------------------------------------------
the Distribution Accounts.
- -------------------------
(a) The Servicer may, from time to time, make withdrawals from the
Certificate Account for any of the following purposes:
(i) to remit to the Trustee for deposit in the Lower-Tier
Distribution Account the amount required to be remitted pursuant to the
first paragraph of Section 3.04(b) and the amount to be applied to make
P&I Advances pursuant to Section 4.03(a);
(ii) to pay (x) to itself, unpaid Servicing Fees (net of any such
amounts required to offset Prepayment Interest Shortfalls pursuant to
Section 3.11(a)) and any Primary Servicing Fees to which it is entitled
pursuant to Section 3.11(a), (y) to any Seller-Servicer entitled
thereto, the related Primary Servicing Fee, and (z) to the Special
Servicer, unpaid Special Servicing Fees, Liquidation Fees and Workout
Fees in respect of each Loan, Specially Serviced Loan and REO Loan, as
applicable, the Servicer's rights, any Seller-Servicer's rights and the
Special Servicer's rights to payment pursuant to this clause (ii) with
respect to any Loan or REO Loan, as applicable, being limited to amounts
received on or in respect of such Loan (whether in the form of payments,
Liquidation Proceeds or Insurance and Condemnation Proceeds) or such REO
Loan (whether in the form of REO Revenues, Liquidation Proceeds or
Insurance and Condemnation Proceeds) that are allocable as a recovery of
interest thereon;
(iii) to reimburse itself or the Trustee, as applicable, for
unreimbursed P&I Advances, the Servicer's or the Trustee's right to
reimburse itself pursuant to this clause (iii) being limited to amounts
received which represent Late Collections of interest (net of the
related Servicing Fees) on and principal of the particular Loans and REO
Loans with respect to which such P&I Advances were made;
(iv) to reimburse itself or the Trustee, as applicable, for
unreimbursed Servicing Advances, the Servicer's or the Trustee's
respective rights to receive payment pursuant to this clause (iv) with
respect to any Loan or REO Property being limited to, as applicable,
related payments, Liquidation Proceeds, Insurance and Condemnation
Proceeds and REO Revenues;
(v) to reimburse itself or the Trustee, as applicable, for
Nonrecoverable Advances out of general collections on the Loans and REO
Properties;
(vi) at such time as it reimburses itself or the Trustee, as
applicable, for (a) any unreimbursed P&I Advance pursuant to clause
(iii) above, to pay itself or the Trustee, as applicable, any interest
accrued and payable thereon in accordance with Section 4.03(d), (b) any
unreimbursed Servicing Advances pursuant to clause (iv) above or
pursuant to Section 3.03(a)(ii), to pay itself or the Trustee, as the
case may be, any interest accrued and payable thereon in accordance with
Section 3.03(d) or (c) any Nonrecoverable Advances pursuant to clause
(v) above, to pay itself or the Trustee, as the case may be, any
interest accrued and payable thereon;
(vii) to reimburse itself, the Special Servicer, the Depositor or
the Trustee, as the case may be, for any unreimbursed expenses
reasonably incurred by such Person in respect of any Breach or Defect
giving rise to a repurchase obligation of the Mortgage Loan Seller under
Section 7 of the Mortgage Loan Purchase Agreement, including, without
limitation, any expenses arising out of the enforcement of the
repurchase obligation, each such Person's right to reimbursement
pursuant to this clause (vii) with respect to any Loan being limited to
that portion of the Purchase Price paid for such Loan that represents
such expense in accordance with clause (iv) of the definition of
Purchase Price;
(viii) in accordance with Section 2.03(e), to reimburse itself or the
Special Servicer, as the case may be, out of general collections on the
Loans and REO Properties for any unreimbursed expense reasonably
incurred by such Person in connection with the enforcement of the
Mortgage Loan Seller's obligations under Section 7 of the Mortgage Loan
Purchase Agreement, but only to the extent that such expenses are not
reimbursable pursuant to clause (vii) above or otherwise;
(ix) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (a) interest and investment income
earned in respect of amounts relating to the Trust Fund held in the
Certificate Account as provided in Section 3.06(b) (but only to the
extent of the Net Investment Earnings with respect to the Certificate
Account for any period from any Distribution Date to the immediately
succeeding P&I Advance Date) (net of any such amounts required to offset
Prepayment Interest Shortfalls pursuant to Section 3.11(a)) and any
Primary Servicing Fees to which it is entitled pursuant to Section
3.11(a), (b) Penalty Charges on any Loan other than a Specially Serviced
Loan, but only to the extent (x) collected from the related Mortgagor
and (y) in excess of outstanding interest on Advances made with respect
to such Loan, and to the extent that all amounts then due and payable
with respect to such Loan have been paid and (c) all Prepayment Interest
Excess in connection with the receipt of Principal Prepayments (except
to the extent otherwise provided in Section 3.11(a)) or Insurance and
Condemnation Proceeds; and to pay the Special Servicer, as additional
servicing compensation in accordance with the second paragraph of
Section 3.11(b), Penalty Charges on any Specially Serviced Loan (but
only to the extent collected from the related Mortgagor and to the
extent that all amounts then due and payable with respect to such
Specially Serviced Loan have been paid);
(x) to recoup any amounts deposited in the Certificate Account in
error;
(xi) to pay itself, the Special Servicer, the Depositor or any of
their respective directors, officers, employees and agents, as the case
may be, any amounts payable to any such Person pursuant to
Sections 6.03(a) or 6.03(b);
(xii) to pay for (a) the cost of the Opinions of Counsel
contemplated by Section 3.32 to the extent payable out of the Trust
Fund, (b) the cost of any Opinion of Counsel contemplated by Sections
10.01(a) or 10.01(c) in connection with an amendment to this Agreement
requested by the Trustee or the Servicer, which amendment is in
furtherance of the rights and interests of Certificateholders and
(c) the cost of obtaining the REO Extension contemplated by
Section 3.16(a);
(xiii) to pay out of general collections on the Loans and REO
Properties any and all federal, state and local taxes imposed on the
Upper-Tier REMIC, the Lower-Tier REMIC or either of their assets or
transactions, together with all incidental costs and expenses, to the
extent that none of the Servicer, the Special Servicer or the Trustee is
liable therefor;
(xiv) to reimburse the Servicer and the Special Servicer out of
general collections on the Loans and REO Properties for expenses
incurred by and reimbursable to them by the Trust Fund;
(xv) to pay itself, the Special Servicer or the Mortgage Loan
Seller, as the case may be, with respect to each Loan, if any,
previously purchased by such Person pursuant to this Agreement, all
amounts received thereon subsequent to the date of purchase;
(xvi) to reimburse the Special Servicer for the cost of any
environmental testing performed at the Special Servicer's direction
pursuant to the last sentence of Section 3.09(c);and
(xvii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
The Servicer shall keep and maintain separate accounting records, on a
loan-by-loan and property-by-property basis when appropriate, for the purpose
of justifying any withdrawal from the Certificate Account.
(b) The Trustee, may, from time to time, make withdrawals from the
Lower-Tier Distribution Account for any of the following purposes:
(i) to make deposits of the Lower-Tier Distribution Amount
pursuant to Section 4.01(b) and the amount of any Prepayment Premium and
Yield Maintenance Charges distributable pursuant to Section 4.01(d) in
the Upper-Tier Distribution Account; and
(ii) to pay the Trustee accrued but unpaid Trustee Fees;
(iii) to pay to the Trustee or any of its Affiliates, directors,
officers, employees and agents, as the case may be, any amounts payable
or reimbursable to any such Person pursuant to Sections 6.03(a), 6.03(b)
or 8.05(b);
(iv) to pay for the cost of the Opinion of Counsel contemplated by
Section 10.01(c) in connection with any amendment to this Agreement
requested by the Trustee; and
(v) to clear and terminate the Lower-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(c) The Trustee may make withdrawals from the Upper-Tier Distribution
Account for any of the following purposes:
(i) to make distributions to Certificateholders (other than
Holders of the Class LR Certificates) on each Distribution Date pursuant
to Section 4.01 or 9.01, as applicable; and
(ii) to clear and terminate the Upper-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(d) Notwithstanding anything herein to the contrary, with respect to any
Loan, (i) if amounts on deposit in the Certificate Account and the Lower-Tier
Distribution Account are not sufficient to pay the full amount of the
Servicing Fee listed in Section 3.05(a)(ii) and the Trustee Fee listed in
Section 3.05(b)(ii), then the Trustee Fee shall be paid in full prior to the
payment of any Servicing Fees payable under Section 3.05(a)(ii) and (ii) if
amounts on deposit in the Certificate Account are not sufficient to reimburse
the full amount of Advances listed in Sections 3.05(a)(iii), (iv), (v) and
(vi), then reimbursements shall be paid first to the Trustee and then to the
Servicer.
SECTION 3.06. Investment of Funds in the Certificate Account,
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Servicing Accounts, Cash Collateral Accounts, the Excess Interest
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Distribution Account, the Yield Protection Payment Account, the Interest
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Reserve Account and the REO Account.
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(a) The Servicer may direct any depository institution maintaining the
Certificate Account, any Servicing Account, any Cash Collateral Account, any
Lock-Box Account, any Enhancement Policy Escrow Account, the Excess Interest
Distribution Account, the Yield Protection Payment Account and the Interest
Reserve Account, and the Special Servicer may direct any depository
institution maintaining the REO Account (any of the foregoing accounts, for
purposes of this Section 3.06, an "Investment Account"), to invest (or if
such depository institution is the Servicer or the Special Servicer, as
applicable, it may itself invest) the funds held therein solely in one or
more Permitted Investments bearing interest or sold at a discount, and
maturing, unless payable on demand, (i) no later than the Business Day
immediately preceding the next succeeding date on which such funds are
required to be withdrawn from such account pursuant to this Agreement, if a
Person other than the depository institution maintaining such account is the
obligor thereon and (ii) no later than the date on which such funds are
required to be withdrawn from such account pursuant to this Agreement, if the
depository institution maintaining such account is the obligor thereon;
provided, however, that (x) any such investment direction by the Servicer with
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respect to funds on deposit in the Interest Reserve Account shall be
coordinated with, and subject to the approval of, Credit Suisse First
Boston Corporation and (y) any such investment direction by the Servicer
with respect to funds on deposit in the Yield Protection Payment Account
shall be coordinated with, and subject to the approval of, the Mortgage
Loan Seller. All such Permitted Investments shall be held to maturity,
unless payable on demand. Any investment of funds in an Investment
Account shall be made in the name of the Trustee (in its capacity as such).
Funds on deposit in the Distribution Accounts shall remain uninvested.
The Servicer (in the case of any Investment Account other than the REO
Account) or the Special Servicer (in the case of the REO Account), on behalf
of the Trustee, shall maintain continuous possession of any Permitted
Investment of amounts in such accounts that is either (i) a "certificated
security," as such term is defined in the UCC or (ii) other property in which
a secured party may perfect its security interest by possession under the UCC
or any other applicable law. Possession of any such Permitted Investment by
the Servicer or the Special Servicer shall constitute possession by the
Trustee, as secured party, for purposes of Section 9-305 of the UCC and any
other applicable law. In the event amounts on deposit in an Investment
Account are at any time invested in a Permitted Investment payable on demand,
the Servicer (in the case of any Investment Account other than the REO
Account) or the Special Servicer (in the case of the REO Account) shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the
lesser of (a) all amounts then payable thereunder and (b) the amount
required to be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Servicer, the Special Servicer or the Trustee, as
the case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Interest and investment income realized on funds deposited in each
of the Certificate Account, the Excess Interest Distribution Account, any
Cash Collateral Account, any Lock-Box Account and any Servicing Account, to
the extent of the Net Investment Earnings, if any, with respect to such
account for each period from any Distribution Date to the immediately
succeeding P&I Advance Date shall be for the sole and exclusive benefit of
the Servicer and shall be subject to its withdrawal, or withdrawal at its
direction, in accordance with Section 3.03(a), 3.05(a), 3.05(b) or 3.05(c),
as the case may be. Interest and investment income realized on funds
deposited in any Enhancement Policy Escrow Account shall be used to pay any
interest on Advances made with respect to, or any other expenses of the Trust
Fund allocable to, the related Loan, and the Servicer shall not be entitled
to any such interest or investment income. As compensation for providing
rating agency review services, interest and investment income realized on
funds deposited in the Interest Reserve Account to the extent of the Net
Investment Earnings, if any, for each period from any Distribution Date to
the immediately succeeding P&I Advance Date shall be for the sole and
exclusive benefit of Credit Suisse First Boston Corporation, or of any
successor corporation that provides such services, and shall be subject to
its withdrawal, or to withdrawal at its direction. As compensation for
reimbursing the Servicer for any Yield Protection Payment Advances made by
it, net interest and investment income realized on funds on deposit in the
Yield Protection Payment Account for each period from any P&I Advance Date to
the immediately succeeding Distribution Date shall be for the sole and
exclusive benefit of the Mortgage Loan Seller and shall be subject to its
withdrawal, or to withdrawal at its direction. Interest and investment
income realized on funds deposited in the REO Account, to the extent of the
Net Investment Earnings, if any, with respect to such account for each period
from any Distribution Date to the immediately succeeding P&I Advance Date,
shall be for the sole and exclusive benefit of the Trust Fund and shall be
subject to its withdrawal in accordance with Section 3.16(c). In the event
that any loss shall be incurred in respect of any Permitted Investment on
deposit in any of the Certificate Account, the Excess Interest Distribution
Account, any Cash Collateral Account, any Lock-Box Account, any Servicing
Account or the REO Account, the Servicer (in the case of the Certificate
Account, the Excess Interest Distribution Account, any Cash Collateral
Account, any Lock-Box Account and any Servicing Account) or the Special
Servicer (in the case of the REO Account) shall deposit therein, no later
than the P&I Advance Date, without right of reimbursement, the amount of the
Net Investment Loss, if any, with respect to such account for the period from
the immediately preceding Distribution Date to such P&I Advance Date. In the
event that any loss shall be incurred in respect of any Permitted Investment
on deposit in the Interest Reserve Account, Credit Suisse First Boston
Corporation shall deposit therein, no later than the P&I Advance Date,
without right of reimbursement, the amount of the Net Investment Loss, if
any, with respect to such account for the period from the immediately
preceding Distribution Date to such P&I Advance Date. In the event that any
loss shall be incurred in respect of any Permitted Investment on deposit in
the Yield Protection Payment Account, the Mortgage Loan Seller shall deposit
therein, no later than 11:00 a.m. New York City time on the related
Distribution Date, without right of reimbursement, the amount of the net
loss, if any, on such investment with respect to such account for the period
from the immediately preceding P&I Advance Date to such Distribution Date.
The Servicer shall not be liable for any loss incurred in respect of any
Permitted Investment on deposit in any Enhancement Policy Escrow Account.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment,
or if a default occurs in any other performance required under any Permitted
Investment, the Trustee may and, subject to Section 8.02, upon the request of
Holders of Certificates entitled to a majority of the Voting Rights allocated
to any Class shall, take such action as may be appropriate to enforce such
payment or performance, including the institution and prosecution of
appropriate proceedings.
Notwithstanding the investment of funds held in the Certificate
Account pursuant to this Section 3.06, for purposes of calculating the
Available Distribution Amount, the amounts so invested shall be deemed to
remain on deposit in such account.
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions
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and Fidelity Coverage.
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(a) The Servicer as to Loans that are not Specially Serviced Loans and
the Special Servicer as to Specially Serviced Loans shall use their
respective reasonable best efforts to cause the Mortgagor to maintain, to the
extent required by the terms of the related Note, or if the Mortgagor does
not so maintain, shall itself maintain, for each Loan any Insurance Policy
coverage as is required under the related Mortgage (to the extent that the
Trustee has an insurable interest and such Insurance Policy coverage is
available at commercially reasonable rates, as determined by the Servicer or
the Special Servicer, as applicable, in accordance with the Servicing
Standard); provided, however, that, subject to Section 3.07(f), if any
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Mortgage permits the holder thereof to dictate to the Mortgagor the
Insurance Policy coverage to be maintained on such Mortgaged Property, the
Servicer or the Special Servicer, as applicable, shall impose such
insurance requirements as are consistent with the Servicing Standard.
Subject to Section 3.17(a), the Special Servicer shall maintain for each
REO Property no less Insurance Policy coverage than was previously required
of the Mortgagor under the related Loan.
All such Insurance Policies shall (i) contain a "standard" mortgagee
clause, with loss payable to the Servicer on behalf of the Trustee (in the
case of insurance maintained in respect of Loans other than REO Properties),
(ii) be in the name of the Special Servicer (in the case of insurance
maintained in respect of REO Properties) on behalf of the Trustee,
(iii) include coverage in an amount not less than the lesser of the full
replacement cost of the improvements which are a part of the Mortgaged
Property or the outstanding principal balance owing on the related Loan,
(iv) include a replacement cost endorsement providing no deduction for
depreciation (unless such endorsement is not permitted under the related Loan
documents) and (v) be issued by either (x) a Qualified Insurer or (y) for any
Insurance Policy being maintained by the related Mortgagor, an insurance
carrier meeting the requirements of the related Mortgage, provided that such
Qualified Insurer or other insurance carrier is authorized under applicable
law to issue such Insurance Policies. Any amounts collected by the Servicer
or the Special Servicer under any such Insurance Policies (other than amounts
to be applied to the restoration or repair of the related Mortgaged Property
or REO Property or amounts to be released to the related Mortgagor, in each
case in accordance with the Servicing Standard and the provisions of the
related Loan) shall be deposited in the Certificate Account, subject to
withdrawal pursuant to Section 3.05(a).
Any costs incurred by the Servicer in maintaining any such Insurance
Policies in respect of Loans (other than with respect to REO Properties) if
the Mortgagor defaults on its obligation to maintain such Insurance Policies
shall be advanced by the Servicer as a Servicing Advance and will be charged
to the related Mortgagor and shall not, for purposes of calculating monthly
distributions to Certificateholders, be added to the unpaid principal balance
of the related Loan, notwithstanding that the terms of such Loan so permit.
Any cost incurred by the Special Servicer in maintaining any such Insurance
Policies with respect to REO Properties shall be an expense of the Trust Fund
payable out of the related REO Account pursuant to Section 3.16(c) or, if the
amount on deposit therein is insufficient therefor, advanced by the Servicer
as a Servicing Advance.
(b) (i) If the Servicer or the Special Servicer obtains and maintains a
blanket Insurance Policy with a Qualified Insurer insuring against fire
and hazard losses on all of the Loans or REO Properties, as the case may
be, required to be serviced and administered hereunder, then, to the
extent such Insurance Policy provides protection equivalent to the
individual policies otherwise required, the Servicer or the Special
Servicer shall conclusively be deemed to have satisfied its obligation
to cause fire and hazard insurance to be maintained on the related
Mortgaged Properties or REO Properties. Such Insurance Policy may
contain a deductible clause, in which case the Servicer or the Special
Servicer shall, if there shall not have been maintained on the related
Mortgaged Property or REO Property a fire and hazard Insurance Policy
complying with the requirements of Section 3.07(a), and there shall have
been one or more losses which would have been covered by such Insurance
Policy, promptly deposit into the Certificate Account (or, if such Loan
is a Construction Loan, the Construction Loan Servicing Account) from
its own funds the amount of such loss or losses that would have been
covered under the individual policy but are not covered under the
blanket Insurance Policy because of such deductible clause to the extent
that any such deductible exceeds the deductible limitation that
pertained to the related Loan, or in the absence of such deductible
limitation, the deductible limitation which is consistent with the
Servicing Standard. In connection with its activities as administrator
and servicer of the Loans, the Servicer agrees to prepare and present,
on behalf of itself, the Trustee and Certificateholders, claims under
any such blanket Insurance Policy in a timely fashion in accordance with
the terms of such policy. The Special Servicer, to the extent
consistent with the Servicing Standard, may maintain, at its own
expense, earthquake insurance on REO Properties, provided coverage is
available at commercially reasonable rates.
(ii) If the Servicer or the Special Servicer causes any Mortgaged
Property or REO Property to be covered by a master single interest
Insurance Policy with a Qualified Insurer naming the Servicer or the
Special Servicer on behalf of the Trustee as the loss payee, then to the
extent such Insurance Policy provides protection equivalent to the
individual policies otherwise required, the Servicer or the Special
Servicer shall conclusively be deemed to have satisfied its obligation
to cause such insurance to be maintained on the related Mortgage
Properties and REO Properties. In the event the Servicer or the Special
Servicer causes any Mortgaged Property or REO Property to be covered by
such master single interest Insurance Policy, the incremental costs of
such insurance applicable to such Mortgaged Property or REO Property
(i.e., other than any minimum or standby premium payable for such policy
whether or not any Mortgaged Property or REO Property is covered
thereby) shall be paid by the Servicer out of its own funds. Such
master single interest Insurance Policy may contain a deductible clause,
in which case the Servicer or the Special Servicer shall, in the event
that (A) there shall not have been maintained on the related Mortgaged
Property or REO Property a policy otherwise complying with the
provisions of Section 3.07(a) and (B) there shall have been one or more
losses which would have been covered by such policy had it been
maintained, deposit into the Certificate Account from its own funds the
amount not otherwise payable under the master single interest Insurance
Policy because of such deductible clause, to the extent that any such
deductible exceeds the deductible limitation that pertained to the
related Loan, or, in the absence of any such deductible limitation, the
deductible limitation which is consistent with the Servicing Standard.
(c) The Servicer and Special Servicer shall maintain with responsible
companies, at their own expense, a blanket fidelity bond (a "Fidelity Bond")
and an errors and omissions insurance policy with a Qualified Insurer, with
broad coverage on all officers, employees or other personnel acting in any
capacity requiring such persons to handle funds, money, documents or paper
relating to the Loans ("Servicer Employees," in the case of the Servicer, and
"Special Servicer Employees," in the case of the Special Servicer). Any such
Fidelity Bond and errors and omissions insurance shall protect and insure the
Servicer against losses, including forgery, theft, embezzlement, fraud,
errors and omissions, failure to maintain any insurance policies required
pursuant to the Agreement and negligent acts of such Servicer Employees or
Special Servicer Employees. Such errors and omissions policy shall also
protect and insure the Servicer against losses in connection with the release
or satisfaction of a Loan without having obtained payment in full of the
indebtedness secured thereby. No provision of this Section requiring such
Fidelity Bond and errors and omissions insurance shall diminish or relieve
the Servicer or Special Servicer from its duties and obligations as set forth
in this Agreement.
The minimum coverage under any such Fidelity Bond and errors and
omissions insurance policy shall be at least equal to $1,000,000. The
Servicer or the Special Servicer, as applicable, shall cause the Trustee, on
behalf of the Trust, to be named as a loss payee on each such Fidelity Bond
and errors and omissions policy. Notwithstanding the foregoing, so long as
the long-term debt or the deposit obligations or claims-paying ability of the
Servicer or Special Servicer (or its immediate or remote parent) is rated at
least "A" by S&P, "A2" by Moody's and "A" by Fitch (or, if not rated by
Fitch, upon written confirmation by Fitch that self-insurance by the Servicer
or the Special Servicer, as applicable, with respect to a Fidelity Bond would
not by reason thereof cause Fitch to qualify, downgrade or withdraw the then-
current rating assigned to any of the Certificates that are currently being
rated by Fitch), the Servicer or the Special Servicer, respectively, shall be
allowed to provide self-insurance with respect to a Fidelity Bond. The
amount of coverage shall be at least equal to the coverage that would be
required by FNMA or FHLMC, whichever is greater, with respect to the Servicer
or the Special Servicer if the Servicer or the Special Servicer, as
applicable, were servicing and administering the Loans or Specially Serviced
Loans, as applicable, for FNMA or FHLMC. Coverage of the Servicer or the
Special Servicer under a policy or bond obtained by an Affiliate of the
Servicer or the Special Servicer and providing the coverage required by this
Section 3.07(c) shall satisfy the requirements of this Section 3.07(c).
The Special Servicer and the Servicer will promptly report in writing to
the Trustee any material changes that may occur in their respective Fidelity
Bonds, if any, and/or their respective errors and omissions Insurance
Policies, as the case may be, and will furnish to the Trustee copies of all
binders and policies or certificates evidencing that such bonds, if any, and
insurance policies are in full force and effect.
(d) During all such times as any Mortgaged Property shall be in a
federally designated special flood hazard area (if flood insurance has been
made available), the Servicer will use its reasonable best efforts to cause
the related Mortgagor (in accordance with applicable law and the terms of the
Loan documents) to maintain, and, if the related Mortgagor shall default in
its obligation to so maintain, shall itself maintain to the extent available
at commercially reasonable rates (as determined by the Servicer in accordance
with the Servicing Standard), flood insurance in respect thereof, but only to
the extent the related Loan permits the mortgagee to require such coverage
and the maintenance of such coverage is consistent with the Servicing
Standard. Such flood insurance shall be in an amount equal to the least of
(i) the unpaid principal balance of the related Loan, (ii) the maximum amount
of insurance which is available under the Flood Disaster Protection Act of
1973, as amended, and (iii) the amount required by the Loan. If the cost of
any insurance described above is not borne by the Mortgagor, the Servicer
shall promptly make a Servicing Advance for such costs, subject to
Section 3.03(c).
(e) During all such times as any REO Property shall be located in a
federally designated special flood hazard area, the Special Servicer will
cause to be maintained, to the extent available at commercially reasonable
rates (as determined by the Special Servicer in accordance with the Servicing
Standard), a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration in an amount representing
coverage not less than the maximum amount of insurance which is available
under the Flood Disaster Protection Act of 1973, as amended. The cost of any
such flood insurance with respect to an REO Property shall be an expense of
the Trust Fund payable out of the related REO Account pursuant to
Section 3.16(c) or, if the amount on deposit therein is insufficient
therefor, paid by the Servicer as a Servicing Advance.
(f) Notwithstanding the provisions of the related Mortgage and any other
provision of this Agreement, but otherwise in accordance with the Servicing
Standard, the Servicer shall not require any Mortgagor to obtain insurance in
excess of the amounts of coverage and deductibles heretofore required by the
Mortgage Loan Seller in connection with the origination of the related Loan
(such amounts, with respect to each Loan, the "Origination Required Insurance
Amounts"), unless the Servicer determines, in accordance with the Servicing
Standard, that such Origination Required Insurance Amounts would not be
prudent for property of the same type as the related Mortgaged Property. The
Servicer shall require that each policy of business-interruption insurance
maintained by a Mortgagor have a minimum term of at least twelve months. The
Depositor shall provide evidence to the Servicer of the Origination Required
Insurance Amounts for each Mortgaged Property.
SECTION 3.08. Enforcement of Due-On-Sale and Due-On-Encumbrance
-------------------------------------------------
Clauses; Assumption Agreements; Defeasance Provisions.
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(a) (i) As to each Loan which contains a provision in the nature of
a "due-on-sale" clause, which by its terms:
(A) provides that such Loan shall (or may at the mortgagee's
option) become due and payable upon the sale or other transfer of an
interest in the related Mortgaged Property; or
(B) provides that such Loan may not be assumed without the
consent of the mortgagee in connection with any such sale or other
transfer,
the Special Servicer shall enforce such due-on-sale clause, unless the
Special Servicer determines, in accordance with the Servicing Standard,
that (1) not declaring an Event of Default (as defined in the related
Mortgage) or (2) granting such consent would be likely to result in a
greater recovery, on a present value basis (discounting at the related
Mortgage Rate), than would enforcement of such clause or not granting
such consent. If the Special Servicer determines that (1) not declaring
an Event of Default (as defined in the related Mortgage) or (2) granting
such consent would be likely to result in a greater recovery, the
Special Servicer shall take or enter into an assumption agreement from
or with the proposed transferee as obligor thereon, provided that (x)
the credit status of the prospective transferee is in compliance with
the Special Servicer's regular commercial mortgage loan origination or
Servicing Standard and criteria and the terms of the related Mortgage
and (y) with respect to any Loan which is a Significant Loan, the
Special Servicer shall have received written confirmation from each of
the Rating Agencies that such assumption would not, in of itself, cause
a downgrade, qualification or withdrawal of any of the then current
ratings assigned to the Certificates.
(ii) Notwithstanding clause (i) of Section 3.08(a), the Mortgaged
Property relating to any of Loan Nos. 14, 29 and 46 may be sold to, and
the related Loan assumed by, Manufactured Housing Communities, Inc. or
any affiliate thereof, subject to confirmation by each Rating Agency in
writing that such sale and assumption would not result in a downgrade,
withdrawal or qualification by such Rating Agency of its then-current
rating of any Class of Certificates.
(iii) Notwithstanding clause (i) of Section 3.08(a), with respect to
the Realmark Loans, the Servicer shall consent to any loan made by the
Mortgage Loan Seller to any holder of the equity in the Realmark
Borrowers that is secured by a pledge of all or a portion of such equity
so long as (A) the Servicer has obtained written confirmation from each
Rating Agency that the terms of the documents relating to such loan,
without regard to the dollar amount thereof, would not result in a
downgrade, withdrawal or qualification by such Rating Agency of its
then-current rating of any Class of Certificates and (B) if the initial
principal balance of such loans, taken as a whole, exceeds $1.2 million,
the consent of the Special Servicer has been obtained.
(iv) Notwithstanding the provisions of any Loan, neither of the
following shall, for purposes of this Agreement, be deemed to be a
violation of the due-on-sale clause of the related Loan Documents or of
clause (i) of Section 3.08(a):
(A) any transfer of the MGM Subordinate Note or the MGM
Preferred Equity Interest in accordance with Section 3.08(a)(vii);
or
(B) foreclosure by a Mezzanine Loan Holder on any Mezzanine Loan
Collateral securing a Mezzanine Loan to an affiliate of the related
Borrower so long as either (1) the Servicer has consented to such
foreclosure or (2) such foreclosure is in connection with the owner
of the Mortgaged Property located at 135 East 57/th/ Street and the
Mezzanine Loan Holder is Capital Trust or an affiliate thereof (a
"57/th/ Street Permitted Foreclosure"), in which case no such
consent shall be required.
(v) Except with respect to a 57/th/ Street Permitted Foreclosure, in
the event that a Permitted Mezzanine Loan Holder requests the consent of
the Servicer to foreclose upon the related Mezzanine Loan Collateral and
S&P continues to provide ratings on any Class of Certificates at such
time, the Servicer shall approve or reject such request in accordance
with the Servicing Standard after consideration of the following
factors:
(A) Whether the net operating income for the related Mortgaged
Property or Properties is less than 85% of the 1997 annual net
operating income for such property or properties as reported in the
Prospectus Supplement;
(B) the occupancy, effective rent, leasing activity, maintenance
and/or revenues for the related Mortgaged Property or Properties
since the Cut-off Date;
(C) the creditworthiness of the existing owner of the Mezzanine
Loan Collateral (the "Owner") and of the proposed transferee thereof
(the "Mezzanine Loan Collateral Transferee") and their relative
financial strength;
(D) the reputation and character of the Owner and of the
Mezzanine Loan Collateral Transferee thereof;
(E) whether the Mezzanine Loan Collateral Transferee and its
property manager shall have sufficient experience in ownership and
management of properties similar to the related Mortgaged Property;
(F) whether the Owner has diligently and timely performed all of
its obligations under the related Loan;
(G) the likelihood that, as a result of such action, (1) the
related Mortgagor will be adjudicated a bankrupt or insolvent, (2) a
petition for bankruptcy, reorganization or arrangement pursuant to
federal bankruptcy law, or any similar federal or state law, will be
filed by or against, consented to by, or acquiesced in by, such
Mortgagor, (3) any proceeding for the dissolution or liquidation of
such Mortgagor will be instituted (any of the events or occurrences
in clause (1), (2) or (3), a "Bankruptcy Event") or (4) if a
Bankruptcy Event occurs with respect to such Mortgagor and the
Servicer is required to make P&I Advances with respect to the
related Mortgaged Property for the period for which such Bankruptcy
Event has not been resolved, each of such P&I Advances will not be a
Nonrecoverable P&I Advance; and
(H) such other factors as are relevant in accordance with the
Servicing Standard.
(vi) The Servicer shall not consent to the foreclosure of any
Mezzanine Loan other than to a Permitted Mezzanine Loan Holder and shall
not consent to the transfer of any Mezzanine Loan except to a Permitted
Mezzanine Loan Holder. Neither the consent of the Servicer nor the
receipt of a rating confirmation shall be required for the foreclosure
by a Permitted Mezzanine Loan Holder if an economic event of default has
been declared under the related Loan (and each Rating Agency has been
notified of such event of default). In no event shall a Mezzanine Loan
Holder be required to pay any assumption fee, modification fee or other
service charge in connection with any foreclosure upon Mezzanine Loan
Collateral, transfer of ownership of the related Mortgaged Property to
such Mezzanine Loan Holder and/or assumption of the related Loan.
Nothing herein shall prevent a Mezzanine Loan Holder from appointing a
receiver or trustee with respect to any Mezzanine Loan Collateral,
foreclosing upon any reserves, escrow accounts or cash collateral
accounts pledged under the related Mezzanine Loan (provided none of such
accounts have been pledged under the related Loan) or otherwise taking
an assignment of any cash flows from any Mezzanine Loan Collateral.
(vii) The Servicer shall not consent to the transfer of the MGM
Subordinate Note or the MGM Preferred Equity Interest except to a
transferee that certifies that on the date of such transfer it is a
Permitted MGM Securityholder.
(b) As to each Loan which contains a provision in the nature of a "due-
on-encumbrance" clause, which by its terms:
(i) provides that such Loan shall (or may at the mortgagee's
option) become due and payable upon the creation of any additional lien
or other encumbrance on the related Mortgaged Property; or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property,
then the Special Servicer shall enforce such due-on-encumbrance clause and in
connection therewith shall (i) accelerate payments thereon or (ii) withhold
its consent to such lien or encumbrance unless the Special Servicer (x)
determines, in accordance with the Servicing Standard, that such enforcement
would result in a greater recovery on a present value basis (discounting at
the related Mortgage Rate) than would enforcement of such clause and
(y) receives prior written confirmation from each of Fitch, S&P and Moody's
that granting such consent or not accelerating payments on the related Loan
would not, in and of itself, cause a downgrade, qualification or withdrawal
of any of the then-current ratings assigned to the Certificates.
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any
assumption of a Loan, any sale or other transfer of the related Mortgaged
Property or the creation of any additional lien or other encumbrance with
respect to such Mortgaged Property.
(d) Except as otherwise permitted by Section 3.20, the Special Servicer
shall not agree to modify, waive or amend any term of any Loan in connection
with the taking of, or the failure to take, any action pursuant to this
Section 3.08.
(e) Notwithstanding any other provisions of this Section 3.08, the
Servicer may grant a Mortgagor's request for consent to subject the related
Mortgaged Property to an easement or right-of-way for utilities, access,
parking, public improvements or another purpose and may consent to
subordination of the related Loan to such easement or right-of-way, provided
the Servicer shall have determined in accordance with the Servicing Standard
that such easement or right-of-way will not materially interfere with the
then-current use of the related Mortgaged Property or the security intended
to be provided by such Mortgage and will not materially or adversely affect
the value of such Mortgaged Property.
(f) With respect to any Loan which permits release of Mortgaged
Properties through defeasance:
(i) The Servicer, with the consent of the Special Servicer, shall
effect such defeasance only through the purchase of U.S. government
obligations satisfying the requirements of clause (i) of the definition of
Permitted Investments herein which purchase shall be made in accordance with
the terms of such Loan; provided, however, that the Servicer shall not accept
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the amounts paid by the related Borrower to effect defeasance until such
U.S. government obligations have been identified and an Independent
accounting firm has provided the Servicer a comfort letter that states that
such defeasance is in the correct amount and is in other respects in
accordance with the terms of such Loan.
(ii) In the event that such Loan permits the assumption of the
obligations of the related Borrower by a successor mortgagor, the Servicer,
with the consent of the Special Servicer, shall cause the Borrower to pay for
the establishment of a successor Borrower and cause an assumption by such
successor Borrower of the defeased obligations under the related Note only if
(a) a given Rating Agency indicates that such assumption would be a
prerequisite to such Rating Agency's delivery of written confirmation that
such defeasance would not cause such Rating Agency to withdraw, qualify or
downgrade any of its then-current ratings on the Certificates, (b) the
Borrower would have more assets, after such defeasance, than the U.S.
government obligations to be obtained or (c) the Borrower is not a special-
purpose entity.
(iii) The Servicer shall require an Opinion of Counsel from the
related Borrower (which shall be an expense of the related Borrower) to the
effect that the Trustee has a first priority security interest in the
defeasance deposit and the related U.S. government obligations and that the
assignment thereof is valid and enforceable.
(iv) The Servicer shall obtain at the related Borrower's expense a
certificate from an Independent certified public accountant certifying that
the U.S. government obligations comply with the requirements of the related
Loan Documents.
(v) Prior to permitting release of any Mortgaged Property through
defeasance, the Servicer shall obtain written confirmation from each Rating
Agency that such defeasance would not, in and of itself, result in a
downgrade, qualification or withdrawal of any of the then current ratings
assigned to the Certificates.
(vi) Neither the Servicer nor the Special Servicer shall permit the
release of any Mortgaged Property through defeasance unless the related
Borrower establishes to the satisfaction of the Servicer or the Special
Servicer that the lien on such Mortgaged Property will be released to
facilitate the disposition thereof or to facilitate any other customary
commercial transaction.
(vii) Prior to permitting release of any Mortgaged Property through
defeasance, if the related Loan so requires and provides for the related
Borrower to pay the cost thereof, the Servicer shall require such Borrower to
deliver an Opinion of Counsel to the effect that such release will not cause
either the Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC
at any time that any Certificates are outstanding or cause a tax to be
imposed on the Trust Fund under the REMIC Provisions.
(g) With respect to any Construction Loan which is secured by Mortgaged
Property on which a CVS Store is to be situated, neither the Servicer nor the
Special Servicer shall permit CVS to substitute a New CVS Store for the
uncompleted CVS Store for which it is proposed to be substituted without an
Opinion of Counsel (which shall not be an expense of the Servicer or Special
Servicer) to the effect that the substitution will not cause such
Construction Loan to fail to qualify as a "qualified mortgage" as defined
under Section 860(a)(3) of the Code while such Loan is owned by the Lower-
Tier REMIC.
(h) With respect to any Loan, neither the Servicer nor the Special
Servicer will permit the related Borrower to substitute any real property,
any rights with respect to real property, or any other property interest
whatsoever for the Mortgaged Property securing such Loan as of the Closing
Date without an Opinion of Counsel (which shall not be an expense of the
Servicer or the Special Servicer) to the effect that the substitution will
not cause the related Loan to fail to qualify as a "qualified mortgage" as
defined under Section 860G(a)(3) of the Code while such Loan is owned by the
Lower-Tier REMIC.
SECTION 3.09. Realization upon Defaulted Loans.
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(a) The Special Servicer shall, subject to subsections (b) through
(d) of this Section 3.09, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert (which
may include an REO Acquisition) the ownership of any property securing such
Loans, as come into and continue in default as to which no satisfactory
arrangements can be made for collection of delinquent payments, and which are
not released from the Trust Fund pursuant to any other provision hereof. The
foregoing is subject to the provision that, in any case in which a Mortgaged
Property shall have suffered damage such that the complete restoration of
such property is not fully reimbursable by the hazard insurance policies or
flood insurance policies required to be maintained pursuant to Section 3.07,
the Servicer shall not be required to make a Servicing Advance and expend
funds toward the restoration of such property unless the Special Servicer has
determined in its reasonable discretion that such restoration will increase
the net proceeds of liquidation of such Mortgaged Property to
Certificateholders after reimbursement to the Servicer for such Servicing
Advance and interest thereon and the Servicer has determined that such
Servicing Advance together with accrued and unpaid interest thereon will be
recoverable by the Servicer out of the proceeds of liquidation of such
Mortgaged Property, as contemplated in Section 3.05(a)(iv). The Special
Servicer shall be responsible for all other costs and expenses incurred by it
in any such proceedings (such costs and expenses to be advanced by the
Servicer to the Special Servicer), provided that, in each case, such cost or
expense would not, if incurred, constitute a Nonrecoverable Servicing
Advance.
Nothing contained in this Section 3.09 shall be construed so as to
require the Servicer or the Special Servicer, on behalf of the Trust Fund, to
make a bid on any Mortgaged Property at a foreclosure sale or similar
proceeding that is in excess of the fair market value of such property, as
determined by the Servicer or the Special Servicer in its reasonable and good
faith judgment taking into account the factors described in Section 3.18(d)
and the results of any Appraisal obtained pursuant to the following sentence,
all such bids to be made in a manner consistent with the Servicing Standard.
If and when the Special Servicer or the Servicer deems it necessary and
prudent for purposes of establishing the fair market value of any Mortgaged
Property securing a Defaulted Loan, whether for purposes of bidding at
foreclosure or otherwise, the Special Servicer or the Servicer, as the case
may be, is authorized to have an Appraisal performed with respect to such
property, the cost of which Appraisal shall be paid by the Servicer as a
Servicing Advance.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 unless either:
(i) such personal property is incident to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be a Servicing Advance) to the effect that the
holding of such personal property by the Trust Fund will not cause the
imposition of a tax on the Lower-Tier REMIC or the Upper-Tier REMIC
under the REMIC Provisions or cause the Lower-Tier REMIC or the Upper-
Tier REMIC to fail to qualify as a REMIC at any time that any
Uncertificated Lower-Tier Interest or Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09, the
Special Servicer shall not, on behalf of the Trustee, obtain title to a
Mortgaged Property in lieu of foreclosure or otherwise, or take any other
action with respect to any Mortgaged Property, if, as a result of any such
action, the Trustee, on behalf of the Certificateholders, would be considered
to hold title to, to be a "mortgagee-in-possession" of, or to be an "owner"
or "operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law, unless (as evidenced by an Officer's Certificate to such
effect delivered to the Trustee) the Special Servicer has previously
determined in accordance with the Servicing Standard, based on an
Environmental Assessment of such Mortgaged Property performed by an
Independent Person who regularly conducts Environmental Assessments, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions
as are necessary to bring the Mortgaged Property in compliance therewith
is reasonably likely to produce a greater recovery on a present value
basis than not taking such actions; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances
or conditions are present for which any such action could be required,
that taking such actions with respect to such Mortgaged Property is
reasonably likely to produce a greater recovery on a present value basis
than not taking such actions.
The cost of any such Environmental Assessment and the cost of any
remedial, corrective or other further action contemplated by clause
(i) and/or clause (ii) of the preceding sentence shall be paid by the
Servicer as a Servicing Advance. If any such Environmental Assessment so
warrants, the Special Servicer shall, at the expense of the Trust Fund,
perform such additional environmental testing as it deems necessary and
prudent to determine whether the conditions described in clauses (i) and
(ii) of the second preceding sentence have been satisfied.
(d) If (i) the environmental testing contemplated by subsection
(c) above establishes that either of the conditions set forth in clauses
(i) and (ii) of the first sentence thereof has not been satisfied with
respect to any Mortgaged Property securing a Defaulted Loan and (ii) there
has been no breach of any of the representations and warranties set forth in
or required to be made pursuant to Section 6 of the Mortgage Loan Purchase
Agreement for which the Mortgage Loan Seller could be required to repurchase
such Defaulted Loan pursuant to Section 7 of the Mortgage Loan Purchase
Agreement, then the Special Servicer shall take such action as it deems to be
in the best economic interest of the Trust Fund and consistent with the
Servicing Standard (other than proceeding to acquire title to the Mortgaged
Property) and is hereby authorized at such time as it deems appropriate to
release such Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall provide written reports and a copy of any
Environmental Assessments to the Trustee, the Servicer and the Certificate
Owners of the Class I and Class J Certificates monthly regarding any actions
taken by the Special Servicer with respect to any Mortgaged Property securing
a Defaulted Loan as to which the environmental testing contemplated in
subsection (c) above has revealed that either of the conditions set forth in
clauses (i) and (ii) of the first sentence thereof has not been satisfied, in
each case until the earlier to occur of satisfaction of both such conditions,
repurchase of the related Loan by the Mortgage Loan Seller or release of the
lien of the related Mortgage on such Mortgaged Property; provided, however,
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that with respect to each such report or Environmental Assessment, if
beneficial ownership of the Class I and Class J Certificates resides in more
than one Certificate Owner, the Special Servicer shall be responsible only
for the expense of providing the first such copy thereof and shall be
entitled to reimbursement from the Trust Fund for the expense of any
additional copies so provided. The Trustee shall forward all such reports to
the Certificateholders and each Rating Agency promptly following the receipt
thereof.
(f) The Servicer shall report to the Internal Revenue Service and the
related Mortgagor, in the manner required by applicable law, the information
required to be reported regarding any Mortgaged Property which is abandoned
or foreclosed and the Servicer shall report, via Form 1099C, all forgiveness
of indebtedness. The Special Servicer shall provide the Servicer with such
information or reports as the Servicer deems necessary to fulfill its
obligations under this paragraph (f) promptly upon the Servicer's request
therefor. The Servicer shall deliver a copy of any such report to the
Trustee and the Special Servicer.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of the maintenance
of an action to obtain a deficiency judgment if the state in which the
Mortgaged Property is located and the terms of the Loan permit such an
action.
(h) The Special Servicer shall maintain accurate records, prepared by
one of its Servicing Officers, of each Final Recovery Determination in
respect of a Defaulted Loan or REO Property and the basis thereof. Each
Final Recovery Determination shall be evidenced by an Officer's Certificate
delivered to the Trustee and the Servicer no later than the next succeeding
P&I Advance Determination Date.
(i) With respect to any of Loan Nos. 14, 29 and 46 (each, an "ECC Loan")
the Special Servicer shall not complete any foreclosure proceeding or accept
any deed in lieu of foreclosure unless it first obtains an Opinion of Counsel
or a ruling from the Internal Revenue Service (an "IRS Ruling"), in each case
to the effect that any property that the Trust Fund could acquire in respect
of such ECC Loan from such action would not fail to qualify as "foreclosure
property" (within the meaning of Section 860G(a)(8) of the Code) as a result
of the facts in existence on the Closing Date, as set forth in a certificate
of the Mortgage Loan Seller dated as of the Closing Date (the "Mortgage Loan
Seller Certificate") and delivered to the Depositor. If, following an event
of default constituting an economic event of default under an ECC Loan, the
Special Servicer (i) determines, in accordance with the Servicing Standard,
that foreclosing on such Loan would be in the best interests of the Trust
Fund and (ii) is unable to obtain such an Opinion of Counsel or IRS Ruling as
a result of the facts in existence on the Closing Date, as set forth in the
Mortgage Loan Seller Certificate, the Special Servicer shall so notify the
Depositor, and the Depositor shall repurchase such Mortgage Loan from the
Trustee at the related Purchase Price on the Distribution Date in the month
following the month of such notice. A foreclosure shall be treated as
"completed" at the time the Trust Fund would be treated as the owner of the
related Mortgaged Property for federal income tax purposes.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.
-----------------------------------------------
(a) Upon the payment in full of any Loan, or the receipt by the Servicer
or the Special Servicer, as the case may be, of a notification that payment
in full shall be escrowed in a manner customary for such purposes, the
Servicer or Special Servicer, as the case may be, will immediately notify the
Trustee and request delivery of the related Mortgage File. Any such notice
and request shall be in the form of a Request for Release signed by a
Servicing Officer and shall include a statement to the effect that all
amounts received or to be received in connection with such payment which are
required to be deposited in the Certificate Account pursuant to
Section 3.04(a) or remitted to the Servicer to enable such deposit, have been
or will be so deposited. Within seven Business Days (or within such shorter
period as release can reasonably be accomplished if the Servicer notifies the
Trustee of an exigency) of receipt of such notice and request, the Trustee,
at no cost to the Servicer or Special Servicer, shall release, or cause any
related Custodian to release, the related Mortgage File to the Servicer or
Special Servicer, as the case may be. No expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the Certificate Account.
(b) From time to time as is appropriate for servicing or foreclosure of
any Loan, the Servicer or the Special Servicer shall deliver to the Trustee a
Request for Release signed by a Servicing Officer. Upon receipt of the
foregoing, the Trustee shall deliver or cause the related Custodian to
deliver the Mortgage File or any document therein to the Servicer or the
Special Servicer (or a designee), as the case may be. Upon return of such
Mortgage File or such document to the Trustee or the related Custodian, or
the delivery to the Trustee of a certificate of a Servicing Officer of the
Servicer or the Special Servicer that such Loan has become an REO Property, a
copy of the Request for Release shall be released by the Trustee to the
Servicer or the Special Servicer (or a designee), as the case may be, with
the original being released upon termination of the Trust Fund.
(c) Within seven Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's
sale or other documents necessary to the foreclosure or trustee's sale in
respect of a Mortgaged Property or to any legal action brought to obtain
judgment against any Mortgagor on the Note or Mortgage or to obtain a
deficiency judgment, or to enforce any other remedies or rights provided by
the Note or Mortgage or otherwise available at law or in equity. The Special
Servicer shall be responsible for the preparation of all such documents and
pleadings. When submitted to the Trustee for signature, such documents or
pleadings shall be accompanied by a certificate of a Servicing Officer
requesting that such pleadings or documents be executed by the Trustee and
certifying as to the reason such documents or pleadings are required, that
the proposed action is in the best interest of the Certificateholders and
that the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such
a lien upon completion of the foreclosure or trustee's sale.
SECTION 3.11. Servicing Compensation.
----------------------
(a) As compensation for its activities hereunder, the Servicer shall be
entitled to receive the Servicing Fee with respect to each Loan and REO Loan
at the Servicing Fee Rate (in accordance with the same terms of the related
Note as are applicable to the accrual of interest at the Mortgage Rate) and
shall be computed on the basis of the Stated Principal Balance of such Loan
on a 30/360 basis. The Servicing Fee with respect to any Loan or REO Loan
shall cease to accrue if a Liquidation Event occurs in respect thereof. The
Servicing Fee shall be payable monthly, on a loan-by-loan basis, from
payments of interest on each Loan and REO Revenues allocable as interest on
each REO Loan. In no event will the Servicer or any Seller-Servicer be
entitled to retain a servicing fee from the amount of any P&I Advance or to
pay itself separate servicing compensation from amounts otherwise
constituting Prepayment Interest Excess, regardless of whether the related
Borrower is obligated to reimburse Servicing Fees or Primary Servicing Fees.
The Servicer, on behalf of itself or any Seller-Servicer, shall be
entitled to recover unpaid Servicing Fees and Primary Servicing Fees (but not
Construction Loan Servicing Fees) in respect of any Loan or REO Loan out of
that portion of related payments, Insurance and Condemnation Proceeds,
Liquidation Proceeds and REO Revenues (in the case of an REO Loan) allocable
as recoveries of interest, to the extent permitted by Section 3.05(a). The
right to receive the Servicing Fee (and, except to the extent set forth in
the Seller-Servicer Agreement with respect to a Seller-Servicer, the related
Primary Servicing Fee), or, with respect to any Construction Loan (except to
the extent set forth in the GECLS Sub-Servicing Agreement), the Construction
Loan Servicing Fee, may not be transferred in whole or in part except in
connection with the transfer of all of the Servicer's responsibilities and
obligations under this Agreement. The Servicer shall pay the annual fees of
each Rating Agency by wire transfer; and the Depositor, within 30 days after
request therefor, shall reimburse the Servicer for such annual fees.
Additional servicing compensation in the form of (i) one-half of all
assumption fees (except with respect to the ECC Loans, to the extent provided
below) paid by the Mortgagors on all Loans that are not Specially Serviced
Loans (but only to the extent that all amounts then due and payable with
respect to such Loans (except for interest on Advances then outstanding) have
been paid), (ii) charges for beneficiary statements or demands and amounts
collected for checks returned for insufficient funds, (iii) all fees received
on or with respect to Loan modifications for which the Servicer is
responsible pursuant to Section 3.20(a)(ii) (but only to the extent actually
collected from the related Mortgagor and only to the extent that all amounts
then due and payable after giving effect to any modification with respect to
the related Loan have been paid) and (iv) other customary charges, in each
case only to the extent actually paid by the related Mortgagor, shall be
retained by the Servicer and shall not be required to be deposited in the
Certificate Account pursuant to Section 3.04(a). All assumption fees with
respect to the proposed sale to Manufactured Housing Communities, Inc. of the
Mortgaged Property securing Loan No. 14 shall be paid solely to the Mortgage
Loan Seller. All assumption fees with respect to the proposed sale to a
third-party of the Mortgaged Properties securing Loan Nos. 29 and 46 in
connection with the bankruptcy proceedings relating to the Borrowers under
such Loans (each, a "Sale") will be shared between the Mortgage Loan Seller
and the Special Servicer as follows: (i) If a Sale takes place in the first
calendar quarter of 1998, the Special Servicer shall be entitled to retain
15% of any resulting assumption fee and the Mortgage Loan Seller shall be
entitled to retain the remaining 85% of such assumption fee, (ii) if a Sale
takes place in the second calendar quarter of 1998, the Special Servicer
shall be entitled to retain 25% of the resulting assumption fee and the
Mortgage Loan Seller shall be entitled to retain the remaining 75% of such
assumption fee, (iii) if a Sale takes place in the third calendar quarter of
1998, the Special Servicer shall be entitled to retain 50% of the resulting
assumption fee and the Mortgage Loan Seller shall be entitled to retain the
remaining 50% of such assumption fee and (iv) if a Sale takes place in the
fourth calendar quarter of 1998, the Special Servicer shall be entitled to
retain 75% of the resulting assumption fee and the Mortgage Loan Seller shall
be entitled to retain the remaining 25% of such assumption fee; provided,
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however, that the Special Servicer shall be obligated to pay all legal fees
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associated with the foregoing. Thereafter, any assumption fees paid in
connection with a Sale shall be additional compensation of the Special
Servicer. Any assumption fees payable in connection with Loan Nos. 29 and
46 and not relating to a Sale shall be paid 50% to the Special Servicer and
50% to the Servicer. The remaining assumption fees shall be delivered to
the Special Servicer as additional servicing compensation. For purposes of
the fourth preceding sentence, the timing of any Sale of the Mortgaged
Property securing Loan No. 29 or Loan No. 46 shall be deemed to be the
date on which a third party enters into a definitive agreement for the
purchase of such Mortgaged Property, provided that such Sale is actually
consummated no later than 90 days after the date such agreement is entered
into; if such Sale is consummated thereafter, the timing of such Sale shall
be deemed to be the date of actual consummation of such agreement.
The Servicer shall also be entitled to additional servicing compensation
in the form of: (i) Penalty Charges received on each Loan (other than
Specially Serviced Loans) but only to the extent actually paid by the related
Mortgagor and to the extent that all amounts then due and payable with
respect to such Loan (including outstanding interest on all Advances accrued
with respect to such Loan) have been paid to the Servicer; (ii) interest or
other income earned on deposits relating to the Trust Fund in the Certificate
Account, any Cash Collateral Account, any Lock-Box Account and the Excess
Interest Distribution Account in accordance with Section 3.06(b) (but only to
the extent of the Net Investment Earnings, if any, with respect to each such
account for each period from any Distribution Date to the immediately
succeeding P&I Advance Date); (iii) interest earned on deposits in the
Servicing Accounts that is not required by applicable law or the related Loan
to be paid to the Mortgagor; (iv) interest earned on deposits in the
Construction Loan Servicing Account that is not required by applicable law or
the related Construction Loans to be paid to the related Construction
Borrowers; and (v) collections representing Prepayment Interest Excess (other
than with respect to any Loan whose terms expressly permit collections of
interest through the following Due Date in connection with any voluntary
Principal Prepayment).
The Servicer shall also be entitled to receive all Primary Servicing
Fees computed on the basis of the related Stated Principal Balance and for
the same period and in the same manner respecting which any related interest
payment due (or deemed to be due) on the related Loan is computed.
The Servicer shall be required to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder
(including, without limitation, payment of any amounts due, except for
premiums for any blanket Insurance Policy insuring against hazard losses
pursuant to Section 3.07), if and to the extent such expenses are not payable
directly out of the Certificate Account, and the Servicer shall not be
entitled to reimbursement therefor except as expressly provided in this
Agreement.
Notwithstanding the foregoing paragraphs of this Section 3.11, the
Servicing Fee on any Loan other than a Specially Serviced Loan and the
investment income earned on any Principal Prepayment made on such Loan during
a given Due Period and due the Servicer on the related Distribution Date
shall be reduced by the Prepayment Interest Shortfall, if any, on such Loan
for such Distribution Date; provided, however, that with respect to any
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Additional Collateral Loan as to which Additional Collateral is paid as a
Principal Prepayment or any Construction Loan as to which a Principal
Prepayment in full is made by CVS following the failure to complete the
related CVS Store by the related Outside Completion Date, neither the
Servicing Fee on such Loan, nor the investment income earned on any such
Principal Prepayment, shall be reduced by the Prepayment Interest Shortfall,
if any, on such Loan for such Distribution Date.
(b) As compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Special Servicing Fee with respect to each
Specially Serviced Loan and REO Loan. As to each Specially Serviced Loan and
REO Loan, the Special Servicing Fee shall accrue at the Special Servicing Fee
Rate (in accordance with the same terms of the related Note as are applicable
to the accrual of interest at the Mortgage Rate) and shall be computed on the
basis of the Stated Principal Balance of such Specially Serviced Loan and for
the same period respecting which any related interest payment due on such
Specially Serviced Loan or deemed to be due on such REO Loan is computed.
The Special Servicing Fee with respect to any Specially Serviced Loan or REO
Loan shall cease to accrue if a Liquidation Event occurs in respect thereof.
The Special Servicing Fee shall be payable monthly, on a loan-by-loan basis,
to the extent permitted by Section 3.05(a). The right to receive the Special
Servicing Fee may not be transferred in whole or in part except in connection
with the transfer of all of the Special Servicer's responsibilities and
obligations under this Agreement.
Additional servicing compensation in the form of (i) all assumption fees
on all Specially Serviced Loans, (ii) 50% of all assumption fees on any Loans
other than Specially Serviced Loans and (iii) all extension fees and all fees
received on or with respect to Loan modifications for which the Special
Servicer is responsible pursuant to Section 3.20(a)(iv), but only to the
extent actually collected from the related Mortgagor and only to the extent
that all amounts then due and payable after giving effect to any modification
with respect to the related Loan (including those payable to the Servicer
pursuant to Section 3.11(a)) have been paid, shall be promptly paid to the
Special Servicer by the Servicer and shall not be required to be deposited in
the Certificate Account pursuant to Section 3.04(a).
The Special Servicer shall also be entitled to additional servicing
compensation in the form of a Workout Fee with respect to each Corrected Loan
at the Workout Fee Rate of (i) 1.0% for any Loan with a Stated Principal
Balance of less than $10,000,000, (ii) 0.75% for any Loan with a Stated
Principal Balance equal to or greater than $10,000,000 but less than
$20,000,000 and (iii) 0.5% for any Loan with a Stated Principal Balance equal
to or greater than $20,000,000, applied to each collection of interest and
principal (including scheduled payments, prepayments, Balloon Payments and
payments at maturity) received on such Loan for so long as it remains a
Corrected Loan. The Workout Fee with respect to any Corrected Loan will
cease to be payable if such Loan again becomes a Specially Serviced Loan;
provided that a new Workout Fee will become payable if and when such Loan
again becomes a Corrected Loan. If the Special Servicer is terminated (other
than for cause or by resignation), it shall retain the right to receive any
and all Workout Fees payable with respect to Loans that became Corrected
Loans during the period that it acted as Special Servicer and were Corrected
Loans at the time of such termination (and the successor Special Servicer
shall not be entitled to any portion of such Workout Fees), in each case
until the Workout Fee for any such loan ceases to be payable in accordance
with the terms hereof.
A Liquidation Fee will be payable with respect to each Specially
Serviced Loan as to which the Special Servicer receives any Liquidation
Proceeds subject to the exceptions set forth in the definition of Liquidation
Fee. As to each Specially Serviced Loan, the Liquidation Fee will be payable
out of, and will be calculated by application of a "Liquidation Fee Rate" of
(i) 1.0% for any Loan with a Stated Principal Balance of less than
$10,000,000, (ii) 0.75% for any Loan with a Stated Principal Balance equal to
or greater than $10,000,000 but less than $20,000,000, and (iii) 0.5% for any
Loan with a Stated Principal Balance equal to or greater than $20,000,000, in
each case expressed as a percentage of net liquidation proceeds received with
respect to such Specially Serviced Loan.
Notwithstanding anything to the contrary described above, no Liquidation
Fee will be payable based on, or out of, Liquidation Proceeds received in
connection with the repurchase of any Loan by the Mortgage Loan Seller for a
breach of representation or warranty or for defective or deficient Loan
documentation, the purchase of any Specially Serviced Loan by the Servicer or
the Special Servicer, the purchase by the Holder of the LR Certificates of
any ARD Loan pursuant to Section 9.03 or the purchase of all of the Loans and
REO Properties in connection with an optional termination of the Trust Fund
pursuant to Section 9.01. If, however, Liquidation Proceeds are received
with respect to any Corrected Loan and the Special Servicer is properly
entitled to a Workout Fee, such Workout Fee will be payable based on and out
of the portion of such Liquidation Proceeds that constitute principal and/or
interest on such Loan.
The Special Servicer will also be entitled to additional fees in the
form of Penalty Charges on each Specially Serviced Loan (but only to the
extent actually collected from the related Mortgagor and to the extent that
all amounts then due and payable with respect to such Specially Serviced Loan
(including outstanding interest on all Advances accrued with respect to such
Specially Serviced Loan) have been paid to the Special Servicer). The
Special Servicer shall be required to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder
(including, without limitation, payment of any amounts, other than management
fees in respect of REO Properties, due and owing to any of its Sub-Servicers
and the premiums for any blanket Insurance Policy obtained by it insuring
against hazard losses pursuant to Section 3.07), if and to the extent such
expenses are not payable directly out of the Certificate Account or the REO
Account, and the Special Servicer shall not be entitled to reimbursement
therefor except as expressly provided in this Agreement.
SECTION 3.12. Reports to the Trustee; Certificate Account Statements.
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(a) The Servicer shall deliver to the Trustee and the Special Servicer,
no later than 1:00 p.m. New York City time on the second Business Day prior
to the Distribution Date, the Servicer Remittance Report with respect to the
related Distribution Date (which shall include, without limitation, the
Available Distribution Amount) including a written statement of anticipated
P&I Advances for the related Distribution Date. The Servicer's
responsibilities under this Section 3.12(a) with respect to Specially
Serviced Loans and REO Loans shall be subject to the satisfaction of the
Special Servicer's obligations under Section 3.21.
(b) For so long as the Servicer makes deposits into and withdrawals from
the Certificate Account, not later than thirty (30) days after each
Distribution Date, the Servicer shall forward to the Trustee a statement
setting forth the status of the Certificate Account as of the close of
business on the last Business Day of the related Due Period showing the
aggregate amount of deposits into and withdrawals from the Certificate
Account of each category of deposit specified in Section 3.04 and each
category of withdrawal specified in Section 3.05 for the related Due Period.
The Trustee and its agents and attorneys may at any time during normal
business hours, upon reasonable notice, inspect and copy the books, records
and accounts of the Servicer relating solely to the Loans and the performance
of its duties hereunder.
(c) No later than 1:00 p.m. New York City time on the Servicer
Remittance Date, the Servicer shall deliver or cause to be delivered to the
Trustee the following reports with respect to the Loans (and, if applicable,
the related REO Properties), providing the required information as of the
related Determination Date: (i) a Comparative Financial Status Report, (ii) a
Delinquent Loan Status Report; (iii) an Historical Loan Modification Report;
(iv) an Historical Loss Estimate Report; and (v) an REO Status Report. Such
reports shall be in writing and on a computer readable medium reasonably
acceptable to the Trustee and the Servicer.
The information that pertains to Specially Serviced Loans and REO
Properties reflected in such reports shall be based solely upon the reports
delivered by the Special Servicer to the Servicer in writing and on a
computer readable medium reasonably acceptable to the Servicer and the
Special Servicer by 1:00 p.m. New York City time at least two Business Days
prior to the related Servicer Remittance Date in the form required Section
3.12(f) or shall be provided by means of such reports so delivered by the
Special Servicer to the Servicer in the form so required. The Servicer's
responsibilities under this Section 3.12(c) with respect to REO Loans and
Specially Serviced Loans shall be subject to the satisfaction of the Special
Servicer's obligations under this Section 3.12(c). In the absence of
manifest error, the Servicer shall be entitled to conclusively rely upon,
without investigation or inquiry, the information and reports delivered to it
by the Special Servicer, and the Trustee shall be entitled to conclusively
rely upon the Servicer's reports and the Special Servicer's reports without
any duty or obligation to recompute, verify or recalculate any of the amounts
and other information stated therein. Servicer shall provide to the Trustee
any new data that Servicer collects or reports in electronic format in its
ordinary course of servicing.
(d) The Servicer shall deliver or cause to be delivered to the Trustee
the following materials, in each case to the extent that such materials or
the information on which they are based have been received by the Servicer:
(i) At least annually by May 31, with respect to each Loan and REO
Loan (to the extent prepared by and timely received from the Special Servicer
in the case of any Specially Serviced Loan or REO Loan), an Operating
Statement Analysis for the related Mortgaged Property or REO Property as of
the end of the preceding fiscal year, together with copies of the operating
statements and rent rolls (but only to the extent the related Borrower
delivers such information to the Servicer and, with respect to operating
statements and rent rolls for Specially Serviced Loans and REO Properties, to
the extent timely delivered by the Special Servicer to the Servicer), for the
related Mortgaged Property or REO Property as of the end of the preceding
fiscal year. The Servicer shall use its best reasonable efforts (but shall
not be required to institute litigation) to obtain said annual operating
statements and rent rolls with respect to each of the Loans, other than
Specially Serviced Loans or REO Loans, which efforts shall include sending a
letter to the related Borrower each quarter (followed up with telephone
calls) requesting such annual operating statements and rent rolls until they
are received, to the extent such action is consistent with applicable law and
the terms of the Loans.
(ii) The Servicer shall maintain an Operating Statement Analysis report
for each Mortgaged Property and REO Property (to the extent prepared by and
received from the Special Servicer in the case of any REO Property or any
Mortgaged Property constituting security for a Specially Serviced Loan). The
Operating Statement Analysis report for each Mortgaged Property (other than
any such Mortgaged Property which is REO Property or constitutes security for
a Specially Serviced Loan) is to be updated by the Servicer and such updated
report shall be delivered to the Trustee within thirty days after receipt by
the Servicer of updated operating statements for such Mortgaged Property.
The Servicer will use any operating statements received with respect to any
Mortgaged Property (other than any such Mortgaged Property which is an REO
Property or constitutes security for a Specially Serviced Loan) to update the
Operating Statement Analysis report for such Mortgaged Property, such updates
shall be completed and copies thereof sent to the Trustee within thirty days
after receipt of the necessary information.
The Special Servicer will be required pursuant to Section 3.12(g) to
deliver to the Servicer the information required pursuant to this Section
3.12(d) with respect to Specially Serviced Loans and REO Loans on or before
March 30 of each year, commencing on March 30, 1998, and within ten days
after its receipt of any operating statement for any related Mortgaged
Property or REO Property.
(e) No later than 1:00 p.m. New York City time on each Servicer
Remittance Date, the Servicer shall prepare and deliver to the Trustee, the
Rating Agencies and the Special Servicer, a Servicer Watch List of (x) all
Loans that the Servicer has determined are in jeopardy of becoming a
Specially Serviced Loan and (y) all Construction Loans as provided in Section
4.02(b). For this purpose, Loans that are in jeopardy of becoming Specially
Serviced Loans shall include, without limitation: (i) Loans having a current
Debt Service Coverage Ratio that is 80% or less of the Debt Service Coverage
Ratio as of the Cut-off Date or having a Debt Service Coverage Ratio that is
less than 1.00x, (ii) Loans as to which any required inspection of the
related Mortgaged Property conducted by the Servicer indicates a problem that
the Servicer determines can reasonably be expected to materially adversely
affect the cash flow generated by such Mortgaged Property, (iii) Loans which
have come to the Servicer's attention in the performance of its duties under
this Agreement, that (A) any tenant occupying 25% or more of the space in the
related Mortgaged Property has vacated (without being replaced by a
comparable tenant and lease) or been the subject of bankruptcy or similar
proceedings or (B) relate to a Borrower or an Affiliate that is the subject
of a bankruptcy or similar proceeding, (iv) Loans that are at least 30 days
delinquent in payment, and (v) Loans that are within 60 days of maturity.
The Special Servicer shall report to the Servicer any of the foregoing
events promptly upon the Special Servicer having knowledge of such event. In
addition, in connection with their servicing of the Loans, the Servicer and
the Special Servicer shall provide to each other and to the Trustee written
notice of any event that comes to their knowledge with respect to a Loan or
REO Property that the Servicer or the Special Servicer, respectively,
determines, in accordance with Servicing Standard, would have a material
adverse effect on such Loan or REO Property, which notice shall include an
explanation as to the reason for such material adverse effect.
(f) At least three Business Days prior to each Servicer Remittance Date,
the Special Servicer shall deliver, or cause to be delivered, to the Servicer
and, upon the request of the Trustee, the Depositor or any Rating Agency, to
any such requesting party, the following reports with respect to the
Specially Serviced Loans (and, if applicable, the related REO Properties),
providing the required information as of the related Determination Date: (i)
a Delinquent Loan Status Report; (ii) an Historical Loss Estimate Report;
(iii) an Historical Loan Modification Report; (iv) an REO Status Report; (v)
Comparative Financial Status Reports with respect to all Specially Serviced
Loans; and (vi) a Servicer Watch List. Such reports shall be presented in
writing and on a computer readable medium.
(g) The Special Servicer shall deliver or cause to be delivered to the
Servicer and, upon the request of the Trustee, the Depositor, or Rating
Agency, to any such requesting party, the following materials, in each case
to the extent that such materials or the information on which they are based
have been received by the Special Servicer:
(i) Annually, on or before April 30 of each year, commencing in
April 1998, with respect to each Specially Serviced Loan and REO Loan, an
Operating Statement Analysis for the related Mortgaged Property or REO
Property as of the end of the preceding calendar year, together with copies
of the operating statements and rent rolls for the related Mortgaged Property
or REO Property as of the end of the preceding calendar year. The Special
Servicer shall use its best reasonable efforts (but shall not be required to
institute litigation) to obtain said annual operating statements and rent
rolls with respect to each Mortgaged Property constituting security for a
Specially Serviced Loan and each REO Property, which efforts shall include
sending a letter to the related Borrower or other appropriate party each
quarter (followed up with telephone calls) requesting such annual operating
statements and rent rolls until they are received.
(ii) The Special Servicer shall maintain an Operating Statement
Analysis report for each Mortgaged Property securing a Specially Serviced
Loan and REO Property. The Operating Statement Analysis report for each
Mortgaged Property which constitutes security for a Specially Serviced Loan
or is a REO Property is to be updated by the Special Servicer and such
updated report delivered to the Servicer within ten days after receipt by the
Special Servicer of updated operating statements for each such Mortgaged
Property. The Special Servicer will use any operating statements received
with respect to any Mortgaged Property which constitutes security for a
Specially Serviced Loan or is a REO Property to update the Operating
Statement Analysis report for such Mortgaged Property, such updates shall be
completed and copies thereof sent to the Servicer within ten days after
receipt of the necessary information.
(h) The Servicer and the Special Servicer hereby agree to deliver to
each Rating Agency any information such Rating Agency may reasonably request.
The Trustee shall be entitled to rely conclusively on and shall not be
responsible for the content or accuracy of any information provided to it by
the Servicer or the Special Servicer pursuant to this Agreement.
SECTION 3.13. Annual Statement as to Compliance.
---------------------------------
The Servicer and the Special Servicer (the "reporting person") each
shall deliver to the Trustee, the Depositor and to the Rating Agencies on or
before March 15 of each year, beginning with March 15, 1998, an Officer's
Certificate stating, as to each signatory thereof, (i) that a review of the
servicing operations of the reporting person during the preceding calendar
year (or such shorter period from the Closing Date to the end of the related
calendar year) and of its performance under this Agreement has been made
under such officer's supervision, (ii) that, to the best of such officer's
knowledge, based on such review, the reporting person has fulfilled all of
its obligations under this Agreement in all material respects throughout such
year (or such shorter period), or, if there has been a material default in
the fulfillment of any such obligation, specifying each such default known to
such officer, the nature and status thereof and what action it proposes to
take with respect thereto, (iii) that, to the best of such officer's
knowledge, each related sub-servicer has fulfilled its obligations under its
sub-servicing agreement in all material respects, or, if there has been a
material default in the fulfillment of such obligations, specifying each such
default known to such officer and the nature and status thereof, and (iv)
whether it has received any notice regarding qualification, or challenging
the status, of the Upper-Tier REMIC or Lower-Tier REMIC as a REMIC from the
IRS or any other governmental agency or body.
SECTION 3.14. Reports by Independent Public Accountants.
-----------------------------------------
On or before March 15 of each year, beginning with March 15, 1998, the
Servicer and the Special Servicer (the "reporting person") each at the
reporting person's expense shall cause a firm of nationally recognized
Independent public accountants (who may also render other services to the
reporting person) which is a member of the American Institute of Certified
Public Accountants to furnish a statement (an "Accountant's Statement") to
the Trustee, the Depositor and the Rating Agencies, to the effect that such
firm has examined the servicing operations of the reporting person for the
previous calendar year (or portions thereof) and that, on the basis of such
examination conducted substantially in compliance with the Uniform Single
Attestation Program ("USAP") for Mortgage Bankers or the Audit Program for
Mortgages (the "Audit Program") serviced for FHLMC, such firm confirms that
the Servicer or the Special Servicer,as the case may be, complied with the
minimum servicing standards identified in USAP or the Audit Program, in all
material respects, except for such significant exceptions or errors in
records that, in the opinion of such firm, the USAP or the Audit Program
requires it to report.
In rendering such statement, such firm may rely, as to matters relating
to direct servicing of mortgage loans by Sub-Servicers, upon comparable
statements for examinations conducted substantially in compliance with the
Uniform Single Audit Program for Mortgage Bankers (rendered within one year
of such statement) of independent public accountants with respect to the
related Sub-Servicer. Each reporting person shall obtain from the related
accountants, or shall prepare, an electronic version of each Accountant's
Statement and provide such electronic version to the Trustee for filing in
accordance with the procedures set forth in Section 3.28 hereof. With respect
to any electronic version of an Accountant's Statement prepared by the
reporting person, the reporting person shall receive written confirmation
from the related accountants that such electronic version is a conformed copy
of the original Accountant's Statement.
SECTION 3.15. Access to Certain Information.
-----------------------------
Each of the Servicer and the Special Servicer shall provide or cause to
be provided to any Certificateholder or Certificate Owner that is, or is
affiliated with, a federally insured financial institution, the Trustee, the
Depositor, each Rating Agency, to the Servicer, or to the Special Servicer,
as applicable, and to the OTS, the FDIC, the Federal Reserve Board and the
supervisory agents and examiners of such boards and such corporations, and
any other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder, access to any documentation
regarding the Loans and the Trust Fund within its control which may be
required by this Agreement or by applicable law.
Such access shall be afforded without charge (except that the Servicer
and the Special Servicer may charge a reasonable fee for copies and out-of-
pocket costs) but only upon reasonable prior written request and during
normal business hours at the offices of the Servicer or the Special Servicer,
as the case may be, designated by it. Nothing in this Section 3.15 shall
detract from the obligation of the Servicer and the Special Servicer to
observe any applicable law prohibiting disclosure of information with respect
to the Mortgagors, and the failure of the Servicer or the Special Servicer to
provide access as provided in this Section 3.15 as a result of such
obligation shall not constitute a breach of this Section 3.15. The Servicer
and the Special Servicer may each deny any of the foregoing persons access to
confidential information or any intellectual property which the Servicer or
the Special Servicer is restricted by license or contract from disclosing.
Notwithstanding the foregoing, the Servicer and the Special Servicer shall
maintain separate from such confidential information and intellectual
property, all documentation regarding the Loans that is not confidential.
SECTION 3.16. Title to REO Property; REO Account.
----------------------------------
(a) If title to any REO Property is acquired, the deed or certificate of
sale shall be issued to the Trustee (or its nominee) on behalf of the
Certificateholders. The Special Servicer, on behalf of the Trust Fund, shall
sell any REO Property within two years after the Trust Fund acquires
ownership of such REO Property for purposes of Section 860G(a)(8) of the
Code, unless the Special Servicer either (i) is granted an extension of time
(an "REO Extension") by the Internal Revenue Service to sell such REO
Property or (ii) obtains for the Trustee and the Servicer an Opinion of
Counsel (the cost of which shall be paid as a Servicing Advance), addressed
to the Trustee and the Servicer, to the effect that the holding by the Trust
Fund of such REO Property subsequent to the second anniversary of such
acquisition will not result in the imposition of taxes on "prohibited
transactions" of the Trust Fund or the Lower-Tier REMIC or the Upper-Tier
REMIC constituted thereby as defined in Section 860F of the Code or cause
either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a
REMIC for federal or applicable state tax purposes at any time that any
Uncertificated Lower-Tier Interests or Certificates are outstanding. If the
Special Servicer is granted the REO Extension or obtains the Opinion of
Counsel contemplated by clause (ii) above, the Special Servicer shall sell
such REO Property within such period longer than two years as is permitted by
such REO Extension or such Opinion of Counsel. Any expense incurred by the
Special Servicer in connection with its being granted the REO Extension or
its obtaining the Opinion of Counsel contemplated by clause (ii) above shall
be an expense of the Trust Fund payable out of the Certificate Account
pursuant to Section 3.05(a).
(b) The Special Servicer shall segregate and hold all funds collected
and received in connection with any REO Property separate and apart from its
own funds and general assets. If an REO Acquisition shall occur, the Special
Servicer shall establish and maintain one or more REO Accounts, held on
behalf of the Trustee in trust for the benefit of the Certificateholders, for
the retention of revenues and other proceeds derived from each REO Property.
The REO Account shall be an Eligible Account. The Special Servicer shall
deposit, or cause to be deposited, in the REO Account, within one (1)
Business Day after receipt, all REO Revenues, Insurance and Condemnation
Proceeds and Liquidation Proceeds received in respect of an REO Property.
Funds in the REO Account may be invested only in Permitted Investments in
accordance with Section 3.06. The Special Servicer shall give notice to the
Trustee and the Servicer of the location of the REO Account when first
established and of the new location of the REO Account prior to any change
thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit
in the REO Account relating to such REO Property. On each Determination
Date, the Special Servicer shall withdraw from the REO Account and deposit
into the Certificate Account the aggregate of all amounts received in respect
of each REO Property during the most recently ended Due Period, net of any
withdrawals made out of such amounts pursuant to the preceding sentence;
provided, however, that the Special Servicer may retain in such REO Account,
in accordance with the Servicing Standard, such portion of such balance as
may be necessary to maintain a reasonable reserve for repairs, replacements,
leasing, management and tenant improvements and other related expenses for
the related REO Property. In addition, on each Determination Date, the
Special Servicer shall provide the Servicer with a written accounting of
amounts deposited in the Certificate Account on such date.
(d) The Special Servicer shall keep and maintain separate records, on a
property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
SECTION 3.17. Management of REO Property.
--------------------------
(a) If title to any REO Property is acquired, the Special Servicer shall
manage, conserve, protect, operate and lease such REO Property for the
benefit of the Certificateholders solely for the purpose of its timely
disposition and sale in a manner that does not cause such REO Property to
fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or result in the receipt by the Trust Fund of
any "income from non-permitted assets" within the meaning of
Section 860F(a)(2)(B) of the Code. Subject to the foregoing, however, the
Special Servicer shall have full power and authority to do any and all things
in connection therewith as are in the best interests of and for the benefit
of the Certificateholders (as determined by the Special Servicer in its good
faith and reasonable judgment) and, consistent therewith, shall withdraw from
the REO Account, to the extent of amounts on deposit therein with respect to
such REO Property, funds necessary for the proper operation, management,
leasing and maintenance of such REO Property, including, without limitation:
(i) all Insurance Policy premiums due and payable in respect of
such REO Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease such
REO Property.
To the extent that amounts on deposit in the REO Account in respect of
any REO Property are insufficient for the purposes set forth in clauses (i) -
(iv) above with respect to such REO Property, the Servicer shall advance from
its own funds such amount as is necessary for such purposes unless (as
evidenced by an Officer's Certificate delivered to the Trustee and the
Depositor) if such advances would, if made, constitute Nonrecoverable
Servicing Advances. The Special Servicer shall give the Servicer and the
Trustee not less than five Business Days' notice, together with all
information reasonably requested by the Servicer (upon which the Servicer may
conclusively rely) to the extent in the possession of the Special Servicer or
readily obtainable by the Special Servicer before the date on which the
Servicer is requested to make any Servicing Advance with respect to an REO
Property; provided, however, that only two Business Days' notice shall be
required in respect of Servicing Advances required to be made on an urgent or
emergency basis (which may include, without limitation, Servicing Advances
required to make tax or insurance payments).
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms
will give rise to any income that does not constitute Rents from Real
Property;
(ii) permit any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the completion of a building or other improvement thereon,
and then only if more than 10% of the construction of such building or
other improvement was completed before default on the related Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any REO Property on any
date more than 90 days after its Acquisition Date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Servicer as a Servicing
Advance) to the effect that such action will not cause such REO Property to
fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code at any time that it is held by the Trust Fund,
in which case the Special Servicer may take such actions as are specified in
such Opinion of Counsel. Except as limited above in this Section 3.17 and by
Section 3.17(c), the Special Servicer shall be permitted to cause the Trust
Fund to earn "net income from foreclosure property," subject to the Servicing
Standard.
(c) The Special Servicer shall contract with any Independent Contractor
for the operation and management of any REO Property within 90 days of the
Acquisition Date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund) shall be reasonable and customary in light of
the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection
(a) hereof, and (B) remit all related revenues collected (net of its
fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Special Servicer of any of its
duties and obligations hereunder with respect to the operation and
management of any such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto
to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such REO
Property.
The Special Servicer shall be entitled to enter into any agreement with
any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to
limit or modify such indemnification.
SECTION 3.18. Sale of Defaulted Loans and REO Properties.
------------------------------------------
(a) Each of the Servicer and the Special Servicer may sell or purchase,
or permit the sale or purchase of, a Defaulted Loan or REO Property only on
the terms and subject to the conditions set forth in this Section 3.18 or as
otherwise expressly provided in or contemplated by Section 2.03(b) and
Section 9.01.
(b) In the event that any Loan becomes a Defaulted Loan and the Special
Servicer has determined in good faith that such Defaulted Loan will become
subject to foreclosure proceedings, the Special Servicer shall promptly so
notify in writing the Trustee and the Servicer. The Special Servicer (or the
Servicer, if the Servicer does not exercise its option, or the Directing
Certificateholder, if the Servicer does not exercise its option) may at its
option purchase such Defaulted Loan from the Trust Fund, at a price equal to
the Purchase Price. The Purchase Price for any Defaulted Loan purchased
hereunder shall be deposited into the Certificate Account, and the Trustee,
upon receipt of an Officer's Certificate from the Special Servicer to the
effect that such deposit has been made, shall release or cause to be released
to the Special Servicer, the Servicer or the Directing Certificateholder, as
the case may be, the related Mortgage File, and shall execute and deliver
such instruments of transfer or assignment, in each case without recourse, as
shall be necessary to vest in the Special Servicer, the Servicer or the
Directing Certificateholder (in that order), as the case may be, ownership of
such Defaulted Loan.
(c) The Special Servicer may offer to sell any Defaulted Loan not
otherwise purchased by the Special Servicer or the Servicer pursuant to
subsection (b) above, if and when the Special Servicer determines, consistent
with the Servicing Standard, that such a sale would produce a greater
recovery on a present value basis than would liquidation of the related
Mortgaged Property. Such offering shall be made in a commercially reasonable
manner for a period of not less than 20 days or more than 90 days. The
Special Servicer shall accept the highest cash bid received from any Person
for such Defaulted Loan in an amount at least equal to the Purchase Price
therefor; provided, however, that in the absence of any such bid, the Special
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Servicer shall accept the highest cash bid received from any Person that is
determined by the Special Servicer to be a fair price for such Defaulted
Loan. In the absence of any bid determined as provided below to be fair,
the Special Servicer shall proceed with respect to such Defaulted Loan in
accordance with Section 3.09.
The Special Servicer shall use reasonable efforts to solicit bids for
each REO Property in such manner as will be reasonably likely to realize a
fair price within the time period provided for by Section 3.16(a). Such
solicitation shall be made in a commercially reasonable manner for a period
of not less than 90 days or more than 270 days. The Special Servicer shall
accept the highest cash bid received from any Person for such REO Property in
an amount at least equal to the Purchase Price therefor; provided, however,
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that in the absence of any such bid, the Special Servicer shall accept the
highest cash bid received from any Person that is determined by the Special
Servicer to be a fair price for such REO Property. If the Special Servicer
reasonably believes that it will be unable to realize a fair price for any
REO Property within the time constraints imposed by Section 3.16(a), then
the Special Servicer shall dispose of such REO Property upon such terms and
conditions as the Special Servicer shall deem necessary and desirable to
maximize the recovery thereon under the circumstances and, in connection
therewith, shall accept the highest outstanding cash bid, regardless of from
whom received. In the event that the Special Servicer determines with
respect to any REO Property that the offers being made with respect thereto
are not in the best interests of the Certificateholders and that the end of
the two-year period referred to in Section 3.16(a) with respect to such REO
Property is approaching, the Special Servicer shall seek an extension of
such two-year period in the manner described in Section 3.16(a); provided,
--------
however, that the Special Servicer shall use its best efforts, consistent
- -------
with the Servicing Standard, to sell any REO Property prior to two years
prior to the Rated Final Distribution Date.
The Special Servicer shall give the Trustee and the Servicer not less
than three Business Days' prior written notice of its intention to sell any
Defaulted Loan or REO Property. No Interested Person shall be obligated to
submit a bid to purchase any Defaulted Loan or REO Property, and
notwithstanding anything to the contrary herein, neither the Trustee, in its
individual capacity, nor any of its Affiliates may bid for or purchase any
Defaulted Loan or any REO Property pursuant hereto.
(d) Whether any cash bid constitutes a fair price for any Defaulted Loan
or REO Property, as the case may be, for purposes of Section 3.18(c), shall
be determined by the Special Servicer, if the highest bidder is a Person
other than an Interested Person, and by the Trustee, if the highest bidder is
an Interested Person. In determining whether any bid received from an
Interested Person represents a fair price for any Defaulted Loan or any REO
Property, the Trustee may conclusively rely on the opinion of an Appraiser or
other expert in real estate matters retained at the expense of the Trust Fund
by (i) the Servicer, if such Interested Person is the Special Servicer or an
Affiliate thereof or (ii) the Special Servicer, in any other case. In
determining whether any bid constitutes a fair price for any Defaulted Loan
or any REO Property, such Appraiser or other expert in real estate matters
shall be instructed to take into account, as applicable, among other factors,
the period and amount of any delinquency on the affected Defaulted Loan, the
occupancy level and physical condition of the Mortgaged Property or REO
Property, the state of the local economy and the obligation to dispose of any
REO Property within the time period specified in Section 3.16(a). The
Purchase Price for any Defaulted Loan or REO Property shall in all cases be
deemed a fair price.
(e) Subject to subsections (a) through (d) above, the Special Servicer
shall act on behalf of the Trustee in negotiating and taking any other action
necessary or appropriate in connection with the sale of any Defaulted Loan or
REO Property, and the collection of all amounts payable in connection
therewith. Any sale of a Defaulted Loan or any REO Property shall be final
and without recourse to the Trustee or the Trust Fund, except as shall be
customary in deeds of real property and if such sale is consummated in
accordance with the terms of this Agreement, neither the Special Servicer nor
the Trustee shall have any liability to any Certificateholder with respect to
the purchase price therefor accepted by the Special Servicer or the Trustee.
SECTION 3.19. Additional Obligations of the Servicer and Special
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Servicer; Inspections; Appraisals.
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(a) The Servicer (or, with respect to Specially Serviced Loan and REO
Properties, the Special Servicer) shall physically inspect or cause to be
physically inspected (at its own expense) each Mortgaged Property at such
times and in such manner as are consistent with the Servicing Standard, but
in any event shall inspect each Mortgaged Property with an Allocated Loan
Amount of (A) $2,000,000 or more at least once every 12 months and (B) less
than $2,000,000 at least once every 24 months, in each case commencing in
January 1998 (or at such lesser frequency as each Rating Agency shall have
confirmed in writing to the Servicer, will not result a downgrade,
qualification or withdrawal of the then current ratings assigned to any Class
of the Certificates) and (C) if the Loan (i) becomes a Specially Serviced
Loan, (ii) has a Debt Service Coverage Ratio of less than 1.0x or (iii) is
delinquent for 60 days, each related Mortgaged Property shall be inspected by
the Special Servicer as soon as practicable and thereafter at least every 12
months for so long as such condition exists. The Servicer or Special
Servicer, as applicable, shall send to the Rating Agencies, within 20 days of
completion, each inspection report for any Significant Loans.
(b) With respect to each Loan that allows the Special Servicer (on
behalf of the Trust Fund) to terminate, or cause the related Borrower to
terminate, the related Manager, upon the occurrence of certain events
specified in such Loan, the Special Servicer shall enforce the Trustee's
rights with respect to the Manager under the related Loan and Management
Agreement, provided, that, if such right accrues under the related Loan or
Management Agreement only because of the occurrence of the related
Anticipated Repayment Date, if any, the Special Servicer shall irrevocably
waive such right with respect to such date. In the event the Special Servicer
is entitled to terminate the Manager, the Special Servicer shall promptly
give notice to the Directing Certificateholder and each Rating Agency. In
accordance with the Servicing Standard, the Special Servicer shall cause the
Borrower to terminate the Manager, and to recommend a Successor Manager
(meeting the requirements set forth below) only if the Special Servicer
determines in its reasonable discretion that such termination is not likely
to result in successful litigation against the Trust Fund by such Manager or
the related Borrower, or create a defense to the enforcement of remedies
under such Loan.
For any Significant Loan, the Special Servicer shall effect such
termination only if the Special Servicer has in the case of any Specially
Serviced Loan received a written confirmation from each of the Rating
Agencies that the appointment of such Successor Manager would not cause such
Rating Agency to withdraw, downgrade or qualify any of the then-current
ratings on the Certificates. In the event a Manager is otherwise terminated
or resigns under the related Loan or Management Agreement and the related
Borrower does not appoint a Successor Manager, the Special Servicer shall use
its best efforts to retain a Successor Manager (or the recommended Successor
Manager, if any) on terms substantially similar to the Management Agreement
or, failing that, on terms as favorable to the Trust Fund as can reasonably
be obtained by the Special Servicer. For the purposes of this paragraph, a
"Successor Manager" shall be reasonably acceptable to the Special Servicer
and a professional management corporation or business entity which (i)
manages, and is experienced in managing, other comparable commercial
properties, (ii) will not result in a downgrade, qualification or withdrawal
of the then current ratings assigned to the Certificates by each Rating
Agency, as confirmed by such Rating Agency in writing, and (iii) otherwise
satisfies any criteria set forth in the Mortgage and related documents.
(c) If required to obtain an Appraisal in connection with an Appraisal
Reduction Event, the Special Servicer shall be required to have received such
Appraisal within 60 days after the occurrence of such Appraisal Reduction
Event (or the date of such Appraisal Reduction Event itself, in the case
where the time period between (i) the occurrence of the event that, with the
passage of time, would become such Appraisal Reduction Event and (ii) such
Appraisal Reduction Event itself exceeds 60 days). Upon receipt, the Special
Servicer shall send a copy of such Appraisal to the Certificate Owners of the
Class I and Class J Certificates; provided, however, that as to each such
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Appraisal, if beneficial ownership of the Class I and Class J Certificates
resides in more than one Certificate Owner, the Special Servicer shall be
responsible only for the expense of providing the first such copy thereof
and shall be entitled to reimbursement from the Trust Fund for the expense
of any additional copies so provided. If neither such an Appraisal is
received, nor such an internal valuation completed, by such date, the
Appraisal Reduction for such Loan shall be conclusively established to be
35% of the Stated Principal Balance of such Loan as of the date of the
related Appraisal Reduction Event. On the first Determination Date
occurring on or after the delivery of such Appraisal, the Special Servicer
will be required to calculate and report to the Servicer, and the Servicer
will report to the Trustee, the Appraisal Reduction to take into account
such Appraisal or an internal valuation. The Servicer may conclusively
rely on any report by the Special Servicer of an Appraisal Reduction.
With respect to each Loan as to which an Appraisal Reduction Event has
occurred (unless such Loan has become a Corrected Loan and has remained
current for twelve consecutive Monthly Payments (for such purposes taking
into account any amendment or modification of such Loan)), the Special
Servicer shall, within 30 days of each annual anniversary of such Appraisal
Reduction Event, order an Appraisal (which may be an update of a prior
Appraisal), or with respect to any Loan with an outstanding principal balance
less than $2,000,000, perform an internal valuation or obtain an Appraisal
(which may be an update of a prior Appraisal), the cost of which shall be
paid by the Servicer as a Servicing Advance. Upon receipt, the Special
Servicer shall send a copy of such Appraisal to the Certificate Owners of the
Class I and Class J Certificates; provided, however, that as to each such
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Appraisal, if beneficial ownership of the Class I and Class J Certificates
resides in more than one Certificate Owner, the Special Servicer shall be
responsible only for the expense of providing the first such copy thereof
and shall be entitled to reimbursement from the Trust Fund for the expense
of any additional copies so provided. Based upon such Appraisal or
internal valuation, as the case may be, the Special Servicer shall
redetermine and report to the Trustee and the Servicer the amount of the
Appraisal Reduction with respect to such Loan, and such redetermined
Appraisal Reduction shall replace the prior Appraisal Reduction with respect
to such Loan. Notwithstanding the foregoing, the Special Servicer will not
be required to obtain an Appraisal or perform an internal valuation, as the
case may be, with respect to a Loan which is the subject of an Appraisal
Reduction Event if the Special Servicer has obtained an Appraisal with
respect to the related Mortgaged Property within the 12-month period
immediately prior to the occurrence of such Appraisal Reduction Event.
Instead, the Special Servicer may use such prior Appraisal in calculating
any Appraisal Reduction with respect to such Loan.
With respect to each Loan as to which an Appraisal Reduction Event has
occurred and which has become a Corrected Loan and has remained current for
twelve consecutive Monthly Payments (for such purposes taking into account
any amendment or modification of such Loan), and with respect to which no
other Appraisal Reduction Event has occurred and is continuing, the Special
Servicer may within 30 days after the date of such twelfth Monthly Payment,
order an Appraisal (which may be an update of a prior Appraisal), or with
respect to any Loan with an outstanding principal balance less than
$2,000,000, perform an internal valuation or obtain an Appraisal (which may
be an update of a prior Appraisal), the cost of which shall be paid by the
Servicer as a Servicing Advance. Based upon such Appraisal or internal
valuation, the Special Servicer shall redetermine and report to the Trustee
and the Servicer the amount of the Appraisal Reduction with respect to such
Loan.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
-----------------------------------------------
(a)(i) Subject to the provisions of this Section 3.20(a), Sections
3.20(b) through 3.20(i) below, the Servicer and the Special Servicer
may, on behalf of the Trustee, agree to any modification, waiver or
amendment of any term of any Loan without the consent of the Trustee or
any Certificateholder.
(ii) For any Mortgage Loan other than a Specially Serviced Mortgage
Loan and subject to the rights of the Special Servicer set forth below,
the Servicer shall be responsible for any request by a Borrower for the
consent of the mortgagee or a modification, waiver or amendment of any
term thereof provided that such consent or modification, waiver or
amendment would not affect the amount or timing of any of the payment
terms of such Mortgage Loan, result in the release of the related
Borrower from any material term thereunder, waive any rights thereunder
with respect to any guarantor thereof or relate to the release or
substitution of any material collateral for such Mortgage Loan. To the
extent consistent with the foregoing, the Servicer shall be responsible
for the following:
(A) Approving a request by the holder of a Mezzanine Loan to
foreclose upon the related Mezzanine Loan Collateral (which consent
shall be given or rejected in accordance with the provisions of
clause Section 3.08(a) above);
(B) Approving any waiver affecting the timing of receipt of
financial statements from any Borrower provided that such financial
statements are delivered no less than quarterly and within 60 days
of the end of the calendar quarter to which such financial
statements relate;
(C) Approving routine leasing activity with respect to leases
for less than the lesser of (a) 20,000 square feet and (b) 20% of
the related Mortgaged Property;
(D) Approving a transfer of equity in a Borrower from one
current equity holder to another provided that such transfer of
equity does not result in a change of control of such Borrower,
cause the transferee to hold more than 49% of the equity in such
Borrower or relate to a Significant Loan;
(E) Approving annual budgets for the related Mortgaged Property,
provided that no such budget (1) relates to a fiscal year in which
an Anticipated Repayment Date occurs, (2) provides for the payment
of operating expenses in an amount equal to more than 110% of the
amounts budgeted therefor for the prior year or (3) provides for the
payment of any material expenses to any affiliate of the Borrower
(other than with respect to the payment of the management fee to any
property manager if such management fee is no more than the
management fee in effect on the Cut-off Date);
(F) Approving a change of the property manager at the request of
the related Borrower provided that the successor property manager is
not affiliated with the Borrower and is a nationally or regionally
recognized manager of similar properties; and
(G) Waiving any provision of a Loan requiring the receipt of a
rating confirmation if such Loan is not a Significant Loan and the
related provision of such Mortgage Loan does not relate to a "due-
on-sale" or "due-on-encumbrance" clause (which shall be subject to
the terms of Section 3.08 hereof).
(iii) Notwithstanding the foregoing, the Servicer shall not waive,
modify or amend any Loan unless such waiver, modification or amendment
would not constitute a "significant modification" under Treasury
regulation section 1.860G-2(b).
(iv) The Special Servicer shall be responsible for any request by a
Borrower for the consent of the mortgagee and any modification, waiver
or amendment of any term of any Mortgage Loan for which the Servicer is
not responsible, as provided above, or if such consent, request,
modification, waiver or amendment relates to a Loan that is on the most
recent Servicer Watch List, has a Debt Service Coverage Ratio (based on
the most recently received financial statements and calculated on a
trailing twelve month basis) less than the greater of 1.1x or 20% less
than the Debt Service Coverage Ratio as of the Cut-off Date (unless such
Mortgage Loan is a Credit Lease Loan) or with respect to which an event
of default has occurred in the preceding 12 months.
(b) All modifications, waivers or amendments of any Loan shall be (i) in
writing and (ii) effected in accordance with the Servicing Standard.
(c) Neither the Servicer nor the Special Servicer, on behalf of the
Trustee, shall agree or consent to any modification, waiver or amendment of
any term of any Loan that is not a Specially Serviced Loan if such
modification, waiver or amendment would:
(i) affect the amount or timing of any related payment of
principal, interest or other amount (including Prepayment Premiums or
Yield Maintenance Charges, but excluding Penalty Interest and other
amounts payable as additional servicing compensation) payable
thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge or permit a Principal
Prepayment during any period in which the related Note prohibits
Principal Prepayments;
(iii) except as expressly contemplated by the related Mortgage or
pursuant to Section 3.09(e), result in a release of the lien of the
Mortgage on any material portion of the related Mortgaged Property
without a corresponding Principal Prepayment in an amount not less than
the fair market value (as determined by an appraisal by an Appraiser
delivered at the expense of the related Mortgagor and upon which the
Servicer and the Special Servicer, as applicable, may conclusively rely)
of the property to be released; or
(iv) in the judgment of the Special Servicer, otherwise materially
impair the security for such Loan or reduce the likelihood of timely
payment of amounts due thereon.
(d) Notwithstanding Sections 3.20(b)(i), 3.20(c)(i) and 3.20(c)(ii), the
Special Servicer may (i) reduce the amounts owing under any Specially
Serviced Loan by forgiving principal, accrued interest and/or any Prepayment
Premium or Yield Maintenance Charge, (ii) reduce the amount of the Monthly
Payment on any Specially Serviced Loan, including by way of a reduction in
the related Mortgage Rate, (iii) forbear in the enforcement of any right
granted under any Note or Mortgage relating to a Specially Serviced Loan,
(iv) waive Excess Interest if such waiver conforms to the Servicing Standard
and/or (v) accept a Principal Prepayment during any Lockout Period; provided
that (x) the related Borrower is in default with respect to the Specially
Serviced Loan or, in the judgment of the Special Servicer, such default is
reasonably foreseeable and (y) Section 3.20(e) is true with respect to the
related Specially Serviced Loan.
(e) Neither the Servicer nor the Special Servicer shall consent to, make
or permit (i) any modification with respect to any Loan that would change the
Mortgage Rate, reduce or increase the principal balance (except for
reductions resulting from actual payments of principal) or change the final
Maturity Date of such Loan unless both (A) the related Mortgagor is in
default with respect to the Loan or, in the judgment of the Special Servicer,
such default is reasonably foreseeable and (B) in the sole good faith
judgment of the Special Servicer and in accordance with the Servicing
Standard, such modification would increase the recovery on the Loan to
Certificateholders on a present value basis (the relevant discounting of
amounts that will be distributable to Certificateholders to be performed at
the related Mortgage Rate) or (ii) any modification, waiver or amendment of
any term of any Loan that would either (A) effect an exchange or reissuance
of such Loan under Section 1001 of the Code (or final, temporary or proposed
Treasury regulations promulgated thereunder with an effective date or
proposed effective date that applies or would apply to such waiver,
modification or amendment) or (B) cause the Trust Fund to fail to qualify as
a REMIC under the Code or result in the imposition of any tax on "prohibited
transactions" or "contributions" after the Startup Day under the REMIC
Provisions.
However, the Special Servicer will not be permitted to extend the date
on which any Balloon Payment is scheduled to be due unless the Special
Servicer has obtained an Appraisal of the related Mortgaged Property in
connection with such extension, which Appraisal supports the determination of
the Special Servicer contemplated by clause (i)(B) of the immediately
preceding paragraph.
The determination of the Special Servicer contemplated by clause (i)(B)
of the first paragraph of this Section 3.20(e) shall be evidenced by an
Officer's Certificate to such effect delivered to the Trustee and the
Servicer and describing in reasonable detail the basis for the Special
Servicer's determination and the considerations of the Special Servicer
forming the basis of such determination (which shall include but shall not be
limited to information, to the extent available, such as related income and
expense statements, rent rolls, occupancy status and property inspections,
and shall include an Appraisal of the related Loan or Mortgaged Property, the
cost of which Appraisal shall be advanced by the Servicer as a Servicing
Advance).
(f) In no event will the Special Servicer be permitted to (i) extend the
maturity date of a Loan beyond a date that is three years prior to the Rated
Final Distribution Date; (ii) extend the maturity date of any Loan at an
interest rate less than the lower of (a) the interest rate in effect prior to
such extension or (b) the then prevailing interest rate for comparable loans,
as determined by the Special Servicer by reference to available indices for
commercial mortgage lending; (iii) if the Loan is secured by a ground lease,
extend the maturity date of such Loan beyond a date which is 10 years prior
to the expiration of the term of such ground lease; (iv) reduce the Mortgage
Rate to a rate below the lesser of (x) 7.5415% per annum and (y) the then
prevailing interest rate for comparable loans, as determined by the Special
Servicer by reference to available indices for commercial mortgage lending;
or (v) defer interest due on any Loan in excess of 5% of the Stated Principal
Balance of such Loan.
(g) Neither the Servicer nor the Special Servicer may permit or modify a
Loan to permit a voluntary Principal Prepayment of a Loan (other than a
Specially Serviced Loan) on any day other than its Due Date, (i) unless the
Servicer or Special Servicer also collects interest thereon through the Due
Date following the date of such Principal Prepayment, (ii) unless otherwise
permitted under the related Loan documents or (iii) unless such Principal
Prepayment would not result in a Prepayment Interest Shortfall.
(h) The Servicer and the Special Servicer may, as a condition to
granting any request by a Mortgagor for consent, modification, waiver or
indulgence or any other matter or thing, the granting of which is within its
discretion pursuant to the terms of the instruments evidencing or securing
the related Loan and is permitted by the terms of this Agreement, require
that such Mortgagor pay to it (i) as additional servicing compensation, a
reasonable or customary fee for the additional services performed in
connection with such request, and (ii) any related costs and expenses
incurred by it. In no event shall the Special Servicer be entitled to
payment for such fees or expenses unless such payment is collected from the
related Mortgagor.
(i) The Special Servicer shall notify the Servicer, any related
Sub-Servicers and the Trustee, in writing, of any modification, waiver or
amendment of any term of any Loan (including fees charged the Mortgagor) and
the date thereof, and shall deliver to the Custodian for deposit in the
related Mortgage File, an original counterpart of the agreement relating to
such modification, waiver or amendment, promptly (and in any event within ten
Business Days) following the execution thereof. The Special Servicer shall
notify the Rating Agencies of any modification, waiver or amendment of any
term of any Significant Loan. Copies of each agreement whereby any such
modification, waiver or amendment of any term of any Loan is effected shall
be made available for review upon prior request during normal business hours
at the offices of the Special Servicer pursuant to Section 3.15 hereof.
(j) With respect to each Significant Loan, if the related Borrower has
been established as a "bankruptcy-remote entity," the Special Servicer shall
not consent to (x) the amendment by such Borrower of its organizational
documents or (y) any action that would violate any covenant of such Borrower
relating to its status as a separate or bankruptcy-remote entity unless the
Special Servicer has obtained written confirmation from each Rating Agency
that such amendment or action would not result in a downgrade, withdrawal or
qualification of any rating on a Class of Certificates rated by such Rating
Agency.
SECTION 3.21. Transfer of Servicing Between Servicer and Special
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Servicer; Record Keeping; Asset Status Report.
- ---------------------------------------------
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Loan, the Servicer shall immediately give notice thereof to
the Special Servicer, the Trustee, the Certificate Owners of the Class I and
Class J Certificates and each Rating Agency, shall deliver copies of the
related Mortgage File and Credit File to the Special Servicer and the
Directing Certificateholder and shall use its reasonable best efforts to
provide the Special Servicer with all information, documents and records
(including records stored electronically on computer tapes, magnetic discs
and the like) relating to such Loan that are in the possession of the
Servicer or available to the Servicer without undue burden or expense, and
reasonably requested by the Special Servicer to enable it to assume its
functions hereunder with respect thereto. The Servicer shall use its
reasonable best efforts to comply with the preceding sentence within five (5)
Business Days of the occurrence of each related Servicing Transfer Event and
in any event shall continue to act as Servicer and administrator of such Loan
until the Special Servicer has commenced the servicing of such Loan. The
Trustee shall deliver to the Underwriter, the Initial Purchaser and to each
Holder of a Class J Certificate a copy of the notice of such Servicing
Transfer Event provided by the Servicer to the Special Servicer pursuant to
this Section.
Upon determining that a Specially Serviced Loan (other than an REO Loan)
has become current and has remained current for three consecutive Monthly
Payments (provided no additional Servicing Transfer Event is foreseeable in
the reasonable judgment of the Special Servicer) and that no other Servicing
Transfer Event is continuing with respect thereto, the Special Servicer shall
immediately give notice thereof and shall return the related Mortgage File
and Credit File to the Servicer and, upon giving such notice and returning
such Mortgage File and Credit File to the Servicer, the Special Servicer's
obligation to service such Corrected Loan shall terminate and the obligations
of the Servicer to service and administer such Loan shall re-commence.
(b) In servicing any Specially Serviced Loan, the Special Servicer will
provide to the Trustee originals of documents included within the definition
of "Mortgage File" for inclusion in the related Mortgage File (with a copy of
each such original to the Servicer), and provide the Servicer with copies of
any additional related Loan information including correspondence with the
related Mortgagor.
(c) On or before each Determination Date, the Special Servicer shall
deliver to the Servicer a written statement (upon which the Servicer may
conclusively rely) describing, on a loan-by-loan and property-by-property
basis, (1) the information described in clause (vii) of Section 4.02(a) with
respect to each Specially Serviced Loan and the information described in
clause (viii) of Section 4.02(a) with respect to each REO Property, (2) the
amount of all payments, Insurance and Condemnation Proceeds and Liquidation
Proceeds received with respect to each Specially Serviced Loan during the
related Due Period, and the amount of all REO Revenues, Insurance and
Condemnation Proceeds and Liquidation Proceeds received with respect to each
REO Property during the related Due Period, (3) the amount, purpose and date
of all Servicing Advances made by the Servicer with respect to each Specially
Serviced Loan and REO Property during the related Due Period, (4) the
information described in clauses (v), (vii), (viii), (xi), (xvi) and (xvii)
of Section 4.02(a) and (5) such additional information relating to the
Specially Serviced Loan and REO Properties as the Servicer reasonably
requests to enable it to perform its responsibilities under this Agreement
which is in the Special Servicer's possession or is reasonably obtainable by
the Special Servicer.
(d) Notwithstanding the provisions of the preceding clause (c), the
Servicer shall maintain ongoing payment records with respect to each of the
Specially Serviced Loan and REO Properties and shall provide the Special
Servicer with any information in its possession required by the Special
Servicer to perform its duties under this Agreement.
(e) No later than 30 days after a Servicing Transfer Event for a Loan,
the Special Servicer shall deliver to each Rating Agency, the Servicer and
the Directing Certificateholder a report (the "Asset Status Report") with
respect to such Loan and the related Mortgaged Property. Such Asset Status
Report shall set forth the following information to the extent reasonably
determinable:
(i) summary of the status of such Specially Serviced Loan;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standard, that are applicable to the exercise of remedies as aforesaid
and to the enforcement of any related guaranties or other collateral for
the related Loan and whether outside legal counsel has been retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Appraised Value of the Mortgaged Property together with
the assumptions used in the calculation thereof;
(v) summary of the Special Servicer's recommended action with
respect to such Specially Serviced Loan; and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standard.
If within ten (10) Business Days of receiving an Asset Status Report,
the Directing Certificateholder does not disapprove such Asset Status Report
in writing, the Special Servicer shall implement the recommended action as
outlined in such Asset Status Report; provided, however, that the Special
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Servicer may not take any action that is contrary to applicable law or the
terms of the applicable Loan documents. If the Directing Certificateholder
disapproves such Asset Status Report, the Special Servicer will revise such
Asset Status Report and deliver to the Directing Certificateholder, the
Rating Agencies and the Servicer a new Asset Status Report as soon as
practicable, but in no event later than 30 days after such disapproval.
The Special Servicer shall revise such Asset Status Report as described
above in this Section 3.21(e) until the Directing Certificateholder shall
fail to disapprove such revised Asset Status Report in writing within ten
(10) Business Days of receiving such revised Asset Status Report or until the
Special Servicer makes one of the determinations described below. The
Special Servicer may, from time to time, modify any Asset Status Report it
has previously delivered and implement such report, provided such report
shall have been prepared, reviewed and not rejected pursuant to the terms of
this Section. Notwithstanding the foregoing, the Special Servicer (i) may,
following the occurrence of an extraordinary event with respect to the
related Mortgaged Property, take any action set forth in such Asset Status
Report before the expiration of a ten (10) Business Day period if the Special
Servicer has reasonably determined that failure to take such action would
materially and adversely affect the interests of the Certificateholders and
it has made a reasonable effort to contact the Directing Certificateholder
and (ii) in any case, shall determine whether such affirmative disapproval is
not in the best interest of all the Certificateholders pursuant to the
Servicing Standard.
Upon making such determination, the Special Servicer shall notify the
Trustee of such rejection and deliver to the Trustee a proposed notice to
Certificateholders which shall include a copy of the Asset Status Report, and
the Trustee shall send such notice to all Certificateholders. If the
majority of such Certificateholders, as determined by Voting Rights, fail,
within 5 days of the Trustee's sending such notice, to reject such Asset
Status Report, the Special Servicer shall implement the same. If the Asset
Status Report is rejected by a majority of the Certificateholders, the
Special Servicer shall revise such Asset Status Report as described above in
this Section 3.21(e). The Trustee shall be entitled to reimbursement from
the Trust Fund for the reasonable expenses of providing such notices.
The Special Servicer shall have the authority to meet with the Mortgagor
for any Specially Serviced Loan and take such actions consistent with the
Servicing Standard and the related Asset Status Report. The Special Servicer
shall not take any action inconsistent with the related Asset Status Report,
unless such action would be required in order to act in accordance with the
Servicing Standard.
No direction of the Directing Certificateholder shall (a) require or
cause the Special Servicer to violate the terms of a Specially Serviced Loan,
applicable law or any provision of this Agreement, including the Special
Servicer's obligation to act in accordance with the Servicing Standard and to
maintain the REMIC status of each of the Lower-Tier REMIC and the Upper-Tier
REMIC, or (b) result in the imposition of a "prohibited transaction" or
"prohibited contribution" tax under the REMIC Provisions, or (c) expose the
Servicer, the Special Servicer, the Depositor, the Mortgage Loan Seller, the
Trust Fund, the Trustee or their Affiliates, officers, directors, employees
or agents to any claim, suit or liability or (d) materially expand the scope
of the Special Servicer's or the Servicer's responsibilities under this
Agreement.
(f) Upon receiving notice of (i) the filing of a case under any present
or future federal or state bankruptcy, insolvency or similar law or the
commencing of any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings with respect to a Loan or the related
Mortgagor, (ii) the existence of a material non-payment default or (iii) the
request by a Mortgagor for the amendment or modification of a Loan, the
Servicer shall immediately give notice thereof, and shall deliver copies of
the related Mortgage File and Credit File to the Special Servicer and shall
use its reasonable best efforts to provide the Special Servicer with all
information relating to the Loan and reasonably requested by the Special
Servicer to enable it to negotiate with the related Mortgagor and prepare for
any such proceedings. The Servicer shall use its reasonable best efforts to
comply with the preceding sentence within five (5) Business Days of the
occurrence of each such event, and upon receiving such documents and
information, the Special Servicer shall use its reasonable best efforts to
cause the related Mortgagor to cure any default and/or remedy any such event,
work out or modify the Loan consistent with the terms of this Agreement,
and/or prepare for such proceedings. Notwithstanding the foregoing, the
occurrence of any of the above-referenced events shall not in and of itself
be considered a Servicing Transfer Event.
SECTION 3.22. Sub-Servicing Agreements.
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(a) The Servicer and the Special Servicer may enter into Sub-Servicing
Agreements to provide for the performance by third parties of any or all of
its respective obligations under Articles III and IV hereof; provided that
the Sub-Servicing Agreement: (i) is consistent with this Agreement in all
material respects and requires the Sub-Servicer to comply with all of the
applicable conditions of this Agreement; (ii) provides that if the Servicer
or the Special Servicer shall for any reason no longer act in such capacity
hereunder (including, without limitation, by reason of an Event of Default),
the Trustee or its designee shall thereupon assume or may elect not to assume
all of the rights and, except to the extent they arose prior to the date of
assumption, obligations of the Servicer or Special Servicer, as applicable
under such agreement, or, alternatively, may act in accordance with
Section 7.02 hereof under the circumstances described therein; (iii) provides
that the Trustee for the benefit of the Certificateholders shall be a
third-party beneficiary under such Sub-Servicing Agreement, but that (except
to the extent the Trustee or its designee assumes the obligations of the
Servicer or the Special Servicer, as applicable, thereunder as contemplated
by the immediately preceding clause (ii)) none of the Trust Fund, the
Trustee, any successor Servicer, Special Servicer or any Certificateholder
shall have any duties under such Sub-Servicing Agreement or any liabilities
arising therefrom; (iv) except with respect to the Seller-Servicer Agreement
and the GECLS Sub-Servicing Agreement, permits any purchaser of a Loan or the
Trustee pursuant to this Agreement to terminate such Sub-Servicing Agreement
with respect to such purchased Loan at its option and without penalty;
(v) does not permit the Sub-Servicer any direct rights of indemnification
that may be satisfied out of assets of the Trust Fund and (vi) if such
Sub-Servicing Agreement is the Seller-Servicer Agreement or the GECLS
Sub-Servicing Agreement, provides that upon termination of the Trust Fund,
the owner of the Loans shall, with respect to those Loans serviced by each
Seller-Servicer or by GE Capital Loan Services, Inc., enter into a servicing
agreement with such Seller-Servicer or with GE Capital Loan Services, Inc.,
as applicable, in the form of the related "Prior Servicing Agreement" (as
defined in the Seller-Servicer Agreement or the GECLS Sub-Servicing
Agreement) or shall pay such Seller-Servicer or GE Capital Loan Services,
Inc., as applicable, the termination fee that would be payable thereunder.
Any successor Servicer or Special Servicer hereunder, upon becoming successor
Servicer or Special Servicer, as applicable, shall have the right to be
assigned and shall have the right to assume any Sub-Servicing Agreements from
the predecessor Servicer or Special Servicer, as applicable. Upon a
termination of the Servicer pursuant to this Agreement, the successor to the
Servicer (other than the Trustee or its designee) shall automatically succeed
to the rights and obligations of the prior Servicer under the Seller-Servicer
Agreement and the GECLS Sub-Servicing Agreement, subject to the termination
rights set forth therein, it being understood that any such succession by the
Trustee or its designee shall not be automatic but shall be in the discretion
of the Trustee or such designee.
In addition, each Sub-Servicing Agreement entered into by the Servicer
may provide that the obligations of the Sub-Servicer thereunder shall
terminate with respect to any Loan serviced thereunder at the time such Loan
becomes a Specially Serviced Loan. The Servicer shall deliver to the Trustee
copies of all Sub-Servicing Agreements, and any amendments thereto and
modifications thereof, entered into by it promptly upon its execution and
delivery of such documents. For purposes of this Agreement, the Servicer
shall be deemed to have received any payment when a Sub-Servicer retained by
it receives such payment. The Servicer shall notify the Special Servicer,
the Trustee and the Depositor in writing promptly of the appointment by it of
any Sub-Servicer. The Special Servicer shall notify the Servicer, the
Trustee and the Depositor in writing promptly of the appointment by it of any
Sub-Servicer.
(b) Each Sub-Servicer shall be authorized to transact business in the
state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law.
(c) As part of its servicing activities hereunder, the Servicer or the
Special Servicer, as applicable, for the benefit of the Trustee and the
Certificateholders, shall (at no expense to the Trustee, the
Certificateholders or the Trust Fund) monitor the performance and enforce the
obligations of each Sub-Servicer under the related Sub-Servicing Agreement.
Such enforcement, including, without limitation, the legal prosecution of
claims, termination of Sub-Servicing Agreements in accordance with their
respective terms and the pursuit of other appropriate remedies, shall be in
such form and carried out to such an extent and at such time as the Servicer
would require were it the owner of the Loans. The Servicer or the Special
Servicer, as applicable, shall have the right to remove a Sub-Servicer
retained by it in accordance with the terms of the related Sub-Servicing
Agreement upon the Events of Defaults and other termination events specified
in the related Sub-Servicing Agreement.
(d) In the event the Trustee or its designee becomes successor Servicer
and elects to assume the rights and obligations of the Servicer or the
Special Servicer, as applicable, under any Sub-Servicing Agreement, the
Servicer or the Special Servicer, as applicable, at its expense, shall
deliver to the assuming party all documents and records relating to such
Sub-Servicing Agreement and the Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use reasonable efforts to effect the orderly and efficient transfer
of the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding the provisions of any Sub-Servicing Agreement, each
of the Servicer and the Special Servicer represents and warrants that it
shall remain obligated and liable to the Trustee and the Certificateholders
for the performance of its obligations and duties under this Agreement in
accordance with the provisions hereof to the same extent and under the same
terms and conditions as if it alone were servicing and administering the
Loans for which it is responsible, and the Servicer, or the Special Servicer,
as applicable, shall pay the fees of any Sub-Servicer thereunder from its own
funds or, with respect to the Seller-Servicers or GE Capital Loan Services,
Inc., shall permit each to retain its fees from amounts collected by such
Seller-Servicer or GE Capital Loan Services, Inc., as applicable. In no
event shall the Trust Fund bear any termination fee required to be paid to
any Sub-Servicer as a result of such Sub-Servicer's termination under any
Sub-Servicing Agreement.
(f) The Trustee shall furnish to any Sub-Servicer any limited powers of
attorney and other documents necessary or appropriate to enable such
Sub-Servicer to carry out its servicing and administrative duties under any
Sub-Servicing Agreement; provided, however, that the Trustee shall not be
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held liable for any negligence or misuse of, any such power of attorney by
a Sub-Servicer, and shall be indemnified by the Sub-Servicer, with respect
thereto.
(g) Except with respect to the Seller-Servicer Agreement and the GECLS
Sub-Servicing Agreement, each Sub-Servicing Agreement shall provide that, in
the event the Trustee or any other Person becomes a successor Servicer or the
Special Servicer, as applicable, the Trustee or such successor Servicer or
the Special Servicer, as applicable, shall have the right to terminate such
Sub-Servicing Agreement without a fee.
(h) Promptly (but in no event later than five (5) Business Days) after
the execution of any Sub-Servicing Agreement, the Servicer shall forward a
copy of such Sub-Servicing Agreement to the Special Servicer, and the Special
Servicer shall forward a copy of such Sub-Servicing Agreement to the Trustee.
The Special Servicer shall comply with the terms of each such Sub-Servicing
Agreement to the extent the terms thereof are not inconsistent with the terms
of this Agreement and the Special Servicer's obligations hereunder.
SECTION 3.23. Representations and Warranties of the Servicer.
----------------------------------------------
(a) The Servicer hereby represents and warrants to the Trustee, for its
own benefit and the benefit of the Certificateholders, and to the Depositor
and the Special Servicer, as of the Closing Date, that:
(i) The Servicer is a national banking association duly organized,
validly existing and in good standing under the laws of the United
States of America, and the Servicer is in compliance with the laws of
each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Servicer,
and the performance and compliance with the terms of this Agreement by
the Servicer, will not violate the Servicer's articles of association
and by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other instrument to which it is
a party or which is applicable to it or any of its assets, or result in
the violation of any law, rule, regulation, order, judgment or decree to
which the Servicer or its property is subject;
(iii) This Agreement, assuming due authorization, execution and
delivery by the Trustee and the Depositor, constitutes a valid, legal
and binding obligation of the Servicer, enforceable against the Servicer
in accordance with the terms hereof, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(iv) The Servicer is not in violation with respect to any law, any
order or decree of any court, or any order, regulation or demand of any
federal, state, municipal or governmental agency, which violations are
likely to have consequences that would materially and adversely affect
the condition (financial or other) or operations of the Servicer or its
properties or are likely to have consequences that would materially and
adversely affect its ability to perform its duties and obligations
hereunder;
(v) No litigation is pending or, to the best of the Servicer's
knowledge, threatened against the Servicer which would prohibit the
Servicer from entering into this Agreement or, in the Servicer's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Servicer to perform its obligations
under this Agreement or the financial condition of the Servicer;
(vi) The Servicer will examine each Sub-Servicing Agreement and
will be familiar with the terms thereof. Any Sub-Servicing Agreements
will comply with the provisions of Section 3.22;
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Servicer, or compliance by the Servicer with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order
which has not been obtained or cannot be obtained prior to the actual
performance by the Servicer of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on the
ability of the Servicer to perform its obligations hereunder; and
(viii) The Servicer has full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(ix) The Servicing Fee represents reasonable servicing
compensation, and the Servicing Fee will be treated for tax and
accounting purposes as compensation for servicing the Loans.
(x) The Servicer has examined each Sub-Servicing Agreement to
which it is a party, and shall examine each Sub-Servicing Agreement to
which it intends to become a party, and in each such case, the terms of
such Sub-Servicing Agreements are not, or, in the case of any
Sub-Servicing Agreement to be entered into by the Servicer at a future
date, will not be, materially inconsistent with the terms of this
Agreement.
(xi) Each officer, director, employee, consultant or advisor of the
Servicer that has responsibilities concerning the servicing and
administration of Loans is covered by errors and omissions insurance in
the amounts and with the coverage required by Section 3.07(c). Neither
the Servicer nor any officer, director, employee, consultant or advisor
of the Servicer that is involved in the servicing or administration of
Loans has been refused such coverage or insurance.
(b) The representations and warranties set forth in paragraph (a) above
shall survive the execution and delivery of the Agreement. The Servicer
shall indemnify the Trustee and the Trust Fund and hold each of them harmless
against any losses, damages, penalties, fines, forfeitures, and reasonable
legal fees and related costs, judgments, and other out-of-pocket costs and
expenses resulting from any claim, demand, defense or assertion arising from,
or resulting from a material breach of the Servicer's representations and
warranties contained in paragraph (a) above, which breach has a material
adverse effect on the ability of the Servicer to perform its obligations
hereunder. Such indemnification shall survive any termination or resignation
of the Servicer, and any termination of the Agreement.
SECTION 3.24. Representations and Warranties of the Special Servicer.
------------------------------------------------------
(a) The Special Servicer hereby represents and warrants to the Trustee,
for its own benefit and the benefit of the Certificateholders, and to the
Depositor and the Servicer, as of the Closing Date, that:
(i) The Special Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida,
and the Special Servicer is in compliance with the laws of each State in
which any Mortgaged Property is located to the extent necessary to
perform its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, will not violate the Special
Servicer's charter and by-laws or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Special Servicer or
its property is subject;
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to
(A) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally and
(B) general principles of equity, regardless of whether such enforcement
is considered in a proceeding in equity or at law;
(v) The Special Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with
the terms of this Agreement will not constitute a violation of, any law,
any order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Special Servicer to perform its obligations under
this Agreement or the financial condition of the Special Servicer;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which
would prohibit the Special Servicer from entering into this Agreement
or, in the Special Servicer's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability of the
Special Servicer to perform its obligations under this Agreement or the
financial condition of the Special Servicer;
(vii) Each officer, director or employee of the Special Servicer
that has or, following the occurrence of a Servicing Transfer Event,
would have responsibilities concerning the servicing and administration
of Loans is covered by errors and omissions insurance in the amounts and
with the coverage required by Section 3.07(c). Neither the Special
Servicer nor any of its officers, directors or employees that is or,
following the occurrence of a Servicing Transfer Event, would be
involved in the servicing or administration of Loans has been refused
such coverage or insurance; and
(viii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Special Servicer, or compliance by the Special
Servicer with, this Agreement or the consummation of the transactions
contemplated by this Agreement, except for any consent, approval,
authorization or order which has not been obtained or cannot be obtained
prior to the actual performance by the Special Servicer of its
obligations under this Agreement, and which, if not obtained would not
have a materially adverse effect on the ability of the Special Servicer
to perform its obligations hereunder.
(ix) The Special Servicing Fee represents reasonable servicing
compensation, and the Special Servicing Fee will be treated for tax and
accounting purposes as compensation for servicing the Specially Serviced
Loans.
(x) The Special Servicer has examined each Sub-Servicing Agreement
to which it is a party, and shall examine each Sub-Servicing Agreement
to which it intends to become a party, and in each such case, the terms
of such Sub-Servicing Agreements are not, or, in the case of any
Sub-Servicing Agreement to be entered into by the Special Servicer at a
future date, will not, be materially inconsistent with the terms of this
Agreement.
(xi) Each officer, director, employee, consultant or advisor of the
Special Servicer that has or, following the occurrence of a Servicing
Transfer Event, would have responsibilities concerning the servicing and
administration of Specially Serviced Loans is covered by errors and
omissions insurance in the amounts and with the coverage required by
Section 3.07(c). Neither the Special Servicer nor any officer, director,
employee, consultant or advisor of the Special Servicer that is or,
following the occurrence of a Servicing Transfer Event, would be
involved in the servicing or administration of Specially Serviced Loans
has been refused such coverage or insurance.
(b) The representations and warranties set forth in paragraph (a) above
shall survive the execution and delivery of the Agreement. The Special
Servicer shall indemnify the Trustee and the Trust Fund and hold each of them
harmless against any losses, damages, penalties, fines, forfeitures, legal
fees and related costs, judgments and other costs and expenses resulting from
any claim, demand, defense or assertion based on or grounded upon, or
resulting from a material breach of the Special Servicer's representations
and warranties contained in paragraph (a) above. Such indemnification shall
survive any termination or resignation of the Special Servicer, and any
termination of the Agreement.
SECTION 3.25. Construction Loans.
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(a) Applicability. This Section 3.25 shall apply only to Construction
-------------
Loans. To the extent of any inconsistency between the provisions of Section
3.25 and the other sections of this Agreement, the provisions of this Section
3.25 shall govern.
(b) Construction Loan Servicing Fee. As compensation for its services
-------------------------------
with regard to the Construction Loans, in addition to the Servicing Fee and
other additional servicing compensation provided for herein, the Servicer
shall receive the Construction Loan Servicing Fee with respect to each
Construction Loan in its Permanent Loan Phase. The Construction Loan
Servicing Fee shall be payable to the Servicer monthly on each Servicer
Remittance Date during the Permanent Loan Phase. For payment of applicable
Construction Loan Servicing Fees, the Servicer shall look solely to CVS or,
if CVS fails to pay any such fee, to the Underwriter. In no event shall the
Servicer be entitled to payment of any Construction Loan Servicing Fees from
the Trust Fund.
(c) Construction Loan Processing Fees. All Construction Loan Processing
---------------------------------
Fees in the nature of assumption fees or modification fees shall be payable
to the Servicer or the Special Servicer, as applicable, in accordance with
the provisions of this Agreement other than this Section 3.25.
(d) Certain Costs and Expenses. Except as expressly provided for
--------------------------
herein, with respect to any Construction Loan the Servicer shall charge the
related Borrower or CVS for any title, survey, engineering, environmental or
related matters, including but not limited to title insurance, date-down
title endorsements, lien waivers and releases and bonding around mechanics'
and materialmen's liens, or, if such Borrower and CVS fail to pay any of the
costs of the foregoing, the Servicer shall apply funds in such Construction
Loan's Construction Funding Sub-Account to pay such costs, and neither the
Servicer nor the Trust Fund shall bear any fees, costs and expenses
associated with any of the same.
(e) Draw Requests. (i) Upon receipt of a Draw Request in the form
-------------
attached as Exhibit M hereto that is (x) completed by the Construction
Developer for a Mortgaged Property relating to a Construction Loan and
(y) approved by the CVS Project Manager for such Construction Loan, the
Servicer shall, subject to clauses (iii) through (vi) of this Section 3.25(e)
and Sections 3.25(f) and 3.25(g), wire the requested funds from such
Construction Loan's Construction Funding Sub-Account pursuant to the
instructions contained in such Draw Request, provided that:
(A) there is only one Draw Request per such Construction Loan per
month and such request is submitted on or about the first of the month;
(B) the signature of such CVS Project Manager appears on the Draw
Request, signifying CVS's approval;
(C) the Servicer has received a title date-down report from the
title company designated by the Servicer continuing the related title
policy to a date no earlier than five (5) Business Days before the
disbursement of the requested funds;
(D) the total amount requested pursuant to such Draw Request does
not exceed the total amount of funds available for such Construction
Loan in the Construction Loan Servicing Account after netting out any
required Retainage Funds and the related Construction Loan Interest
Reserve; and
(E) either (1) no default or event of default of which the Servicer
has actual knowledge exists under the related Loan Documents or (2)
notwithstanding the existence of any such default or event of default,
the Special Servicer instructs the Servicer to honor such Draw Request.
(ii) The Servicer shall order the title date-down report within one
Business Day after receipt from CVS of a completed Draw Request bearing the
signature of the related CVS Project Manager. Except as otherwise provided
in paragraphs (iii) through (vi) of this Section 3.25(e) and Section 3.25(f)
and 3.25(g), the Servicer shall wire the requested funds within five (5)
Business Days after receipt of such Draw Request, provided that the title
date-down report described in clause (C) of Section 3.25(e)(i) has been
received within such five (5) Business Day period (and the conditions in
clauses (A), (B), (D) and (E) of Section 3.25(e)(i) have also been
satisfied), and regardless of any liens or encumbrances shown by such report.
If the title date-down report is not received within such five (5) Business
Day period, then except as otherwise provided in the following paragraph, the
Servicer shall wire the requested funds within one (1) Business Day after
receiving the title date-down report. The Servicer shall have no
responsibility for reviewing any documentation submitted in connection with a
Draw Request other than to verify that the conditions stated in clauses (A)
through (E) of Section 3.25(e)(i) have been satisfied.
(iii) Apart from determining whether title date-down reports satisfy
the condition stated in clause (C) of Section 3.25(e)(i), the Servicer's sole
responsibility with regard to such reports shall be to forward, by means of
telecopy within one (1) Business Day after receipt thereof (or, if practical,
on the date of such receipt), (A) to CVS, copies of any title date-down
report that indicates any lien or encumbrance not noted in the title policy
provided to the Servicer as part of the Mortgage File for the related
Construction Loan and (B) to the Special Servicer, copies of any such title
date-down report indicating a lien or encumbrance that (x) is not noted in
the title policy provided to the Servicer as part of the Mortgage File for
the related Construction Loan and (y) secures a sum in excess of 10% of the
principal balance of such Construction Loan. If the conditions stated in
clauses (A) through (E) of Section 3.25(e)(i) have been satisfied, the
Servicer shall withhold funding of a Draw Request only if, within two (2)
Business Days of the Servicer's sending such a title date-down report to CVS
(or, if applicable, the Special Servicer), the Servicer receives instructions
in writing from CVS (in the case of any Construction Loan subject to a lien
or encumbrance described in clause (A) of the preceding sentence) or from the
Special Servicer (in the case of any Construction Loan subject to a lien or
encumbrance described in clause (B) of the preceding sentence) that all or a
portion of the Draw Request for which such title date-down report was ordered
should not be funded. If, in the case of a Construction Loan subject to a
lien or encumbrance described in clause (B) of the second preceding sentence,
CVS and the Special Servicer both instruct the Servicer to withhold funding
of all or a portion of a Draw Request, but such instructions differ as to the
amount to be funded, the Servicer shall, absent contrary written instructions
from the Special Servicer, follow those instructions that would result in
funding the smaller amount to the Construction Borrower. The Special
Servicer shall concurrently deliver to the related Sub-Servicer a copy of any
instructions sent by the Special Servicer to the Servicer pursuant to this
paragraph.
(iv) If, pursuant to the immediately preceding paragraph, but subject
to the following sentence, the Servicer is instructed by either CVS or the
Special Servicer to withhold funding of such Draw Request, the Servicer shall
comply with such instruction and shall notify CVS or the Special Servicer, as
applicable, that the Servicer has done so. In such event (absent contrary
written instructions from the Special Servicer in the case of any
Construction Loan subject to a lien or encumbrance described in clause (B) of
the first sentence of Section 3.25(e)(iii)), funding of such Draw Request,
and of any subsequent Draw Requests under such Construction Loan, shall not
be made until CVS notifies the Servicer in writing that CVS is satisfied with
the state of title for the applicable Mortgaged Property. To the extent the
Special Servicer wishes to withhold funding of subsequent Draw Requests after
the Special Servicer's review of any title date-down report forwarded to it
pursuant to Section 3.25(e)(iii), regardless of any instructions from CVS,
the Special Servicer shall so notify the Servicer in writing, and shall send
a copy of such notice to the related Sub-Servicer, no later than two (2)
Business Days prior to the first Business Day of the month in which such
funding is to be withheld.
(v) If the Servicer receives a Draw Request that exceeds the total
amount of funds available under the related Construction Loan after netting
out any required Retainage Funds and the related Construction Loan Interest
Reserve, the Servicer shall notify CVS (and, if the amount of such excess is
greater than 10% of such available funds, the Special Servicer) of such fact.
In the case of any Draw Request as to which the Servicer is required to
notify the Special Servicer pursuant to the preceding sentence, the Servicer
shall not fund such Draw Request unless and until it receives written
instructions from the Special Servicer.
(vi) If, in the case of any Draw Request as to which the Servicer is
required to notify CVS pursuant to Section 3.25(e)(v), funds sufficient to
satisfy such Draw Request have not been received by the Servicer from CVS (or
otherwise on behalf of the related Construction Borrower) within 15 days
after the Servicer makes such notification, the Servicer shall notify the
Special Servicer of such fact and shall not fund such Draw Request unless and
until it has received such funds.
(vii) If the Servicer receives a Draw Request that does not conform to
the requirements set forth herein, the Servicer shall return such
non-conforming Draw Request to the CVS Project Manager for the related
Construction Loan along with notice of the specific defect. A copy of such
notice, but not of the Draw Request itself, shall be sent to the related
Construction Borrower. If and when such Draw Request is resubmitted, it
shall be processed by the Servicer as a new Draw Request in the normal course
of business under this Agreement.
(viii) The Servicer shall not be responsible for obtaining or
reviewing, or supplying to the title company, any documentation necessary to
obtain required title date-down reports and title endorsements. The Servicer
shall be entitled to rely on CVS and, if applicable, the Special Servicer to
deal with all issues relating to lien waivers, contractor affidavits, lien
releases and all supporting documentation. The Servicer shall be entitled to
rely on the truth and authenticity of any documentation supplied by the
Construction Borrower, CVS or, if applicable, the Special Servicer in any way
related to the Draw Request process.
(f) Final Draw Request. In addition to the form and documentation
------------------
required pursuant to Section 3.25(e) for a Draw Request, the Servicer shall
require the Final Draw Request with respect to any Construction Loan to be
accompanied by the following:
(i) such documentation, including but not limited to all appropriate
lien waivers, as may be required by the applicable title company in order to
issue a clear title endorsement continuing the title policy insuring a first
lien on the related Mortgaged Property in the full amount of such
Construction Loan without any change in conditions of or exceptions to the
coverage in such title policy;
(ii) valid "Certificate(s) of Occupancy", or applicable
equivalents under the law of the jurisdiction where the related CVS
Improvements are located, issued by all appropriate authorities for the CVS
Store built on such Mortgaged Property;
(iii) a certification from the architect designated in the CSFB
Construction Loan Agreement for such Construction Loan, confirming completion
of the related CVS Improvements in accordance with the related Project Plans
and Specifications;
(iv) a survey showing the as-built project;
(v) a certification from CVS regarding completion and occupancy;
and
(vi) the list of Punch List Items to be completed, the agreed
cost thereof as approved by CVS, and CVS's wiring instructions for the funds
to cover such costs.
If the funds on deposit in a Construction Loan's Construction Funding
Sub-Account (including any Retainage Funds) are sufficient to fund the Final
Disbursement for such Construction Loan, the Servicer shall wire such Final
Disbursement within ten (10) days after receiving all of the required
documentation set forth above. The funds necessary to cover the costs set
forth in the list of Punch List Items shall be wired by the Servicer to CVS
pursuant to the instructions to be delivered by CVS pursuant to clause (vi)
of the immediately preceding paragraph.
(g) Insufficient Funds for Final Draw Request. (i) If a Final Draw
-----------------------------------------
Request as submitted would exceed the total amount of funds on deposit in the
related Construction Loan's Construction Funding Sub-Account (including any
Retainage Funds), the Servicer shall so advise CVS and, if the amount of such
excess is greater than 10% of such total amount, the Special Servicer. In
the case of any Final Draw Request as to which the Servicer is required to
notify the Special Servicer pursuant to the preceding sentence, the Servicer
shall not fund such Final Draw Request unless and until it receives written
instructions from the Special Servicer to fund such Final Draw Request.
(ii) If, in the case of any Final Draw Request as to which the Servicer
is required to notify CVS pursuant to Section 3.25(g)(i), funds sufficient to
satisfy such Final Draw Request have not been received by the Servicer from
CVS (or otherwise on behalf of the related Construction Borrower) within 15
days after the Servicer makes such notification, the Servicer shall notify
the Special Servicer of such fact and shall not fund such Final Draw Request
unless and until it has received such funds.
(h) Change Orders. The Servicer shall review all change order requests
-------------
(each, a "Change Order") to determine whether CVS has certified on each
Change Order for each Construction Loan that such Change Order, when
aggregated with all prior Change Orders for such Construction Loan, would
neither result in an aggregate change of more than ten percent (10%) in the
Construction Budget for the related CVS Improvements nor result in the
Project Budget varying from the related appraisal by more than ten percent
(10%). If CVS has failed to certify the facts in the preceding sentence with
respect to any Change Order, then the Servicer shall so notify the Special
Servicer, and the Special Servicer shall provide written instructions to the
Servicer as to any desired changes in the servicing of such Construction
Loan, including, but not limited to, the processing of subsequent Draw
Requests. Unless and until the Servicer receives contrary instructions from
the Special Servicer (a copy of which instructions shall be forwarded
concurrently by the Special Servicer to the related Sub-Servicer), the
Servicer shall continue to process Draw Requests pursuant to this Section
3.25, notwithstanding the Change Orders and the resulting changes in the
construction costs of the CVS Improvements. The Servicer shall not be
required to perform any Change Order tracking beyond the scope set forth
above.
(i) Inspection. Prior to the Final Disbursement for a Construction
----------
Loan, the Servicer shall conduct or cause to be conducted a limited
inspection of the related Mortgaged Property for the sole and limited purpose
of confirming that a CVS Store has been built at the address of such
Mortgaged Property as provided in the related Loan Documents.
(j) Notice to the Special Servicer. Within ten (10) days after each of
------------------------------
(i) the date of the Final Disbursement for a Construction Loan and (ii) the
Date of Rent Commencement under the related Construction Loan Lease, the
Servicer shall notify the Special Servicer of each such event.
(k) Construction Loan Excess Funds. In the event that after the Final
------------------------------
Disbursement for a Construction Loan is funded pursuant to a Final Draw
Request, there are additional funds allocable to such Construction Loan in
the related Construction Funding Sub-Account (such additional funds,
"Construction Loan Excess Funds"), the Servicer shall wire such funds to the
related Construction Borrower; provided, however, that if the Servicer has
-------- -------
actual knowledge of any default or event of default under the related Loan
Documents, the Servicer shall give the Special Servicer prompt notice
thereof, and, unless and until such default or event of default is cured,
such remaining funds shall be retained in such Construction Funding
Sub-Account (to the extent permitted by such Loan Documents) pending
instructions to the Servicer from (or, if such default or event of default
constitutes a Servicing Transfer Event, action by) the Special Servicer.
The Servicer shall follow such instructions, if any, upon receipt from the
Special Servicer.
(l) (RESERVED)
(m) Construction Loan Servicing Account.
-----------------------------------
(i) Deposits. The Servicer shall establish and maintain a
--------
Construction Loan Servicing Account, which shall be an Eligible Account, for
all of the Construction Loans. The Servicer shall deposit or cause to be
deposited in the Construction Loan Servicing Account on a daily basis, or as
otherwise required hereunder (unless the Servicer determines in its good
faith judgment that any such deposit should not be made because of a
restrictive endorsement or for any other appropriate reason), and as soon as
possible after, but in any event within one Business Day following, receipt
by the Servicer of the following payments and collections relating to each
Construction Loan:
(A) all Rents from Real Property;
(B) all payments on account of interest on the Construction Loans,
all payments on account of principal, including Principal Prepayments,
on the Construction Loans, and, if applicable, all related Prepayment
Premiums and/or Yield Maintenance Charges;
(C) all Insurance and Condemnation Proceeds and Liquidation Proceeds
received in respect of any Construction Loan or related REO Property (to
the extent permitted or required to be paid to the Construction Lender
pursuant to the terms of the related lease and the related Loan
Documents); and
(D) any amounts required to be deposited by the Servicer pursuant to
Section 3.25(o) in connection with losses incurred with respect to
Permitted Investments of funds held in the Construction Loan Servicing
Account.
(E) any amounts required to be deposited by the Servicer pursuant to
Section 3.07(b) in connection with losses resulting from a deductible
clause in a blanket hazard policy;
(F) any amounts required to be deposited by the Servicer pursuant to
the last paragraph of Section 3.11(a) as a reduction in the compensation
to the Servicer to cover Prepayment Interest Shortfalls;
(G) any Prepayment Interest Excess to which the Servicer is not
entitled as provided in Section 3.11(a); and
(H) any funds received by the Servicer from CVS for the purpose of
satisfying Draw Requests; and
(I) all other amounts payable to the Construction Lender under the
related Loan Documents, less, however, any amounts payable to the
Servicer for the Servicer's reimbursable costs, which amounts shall be
retained by the Servicer.
(ii) Crediting of Payments. Payments to the Construction Loan
---------------------
Servicing Account shall be credited on the Business Day on which immediately
available funds are received prior to 1:00 p.m. New York City time; payments
received after 1:00 p.m. New York City time shall be credited on the next
succeeding Business Day. Payments which are made by check or which are not
in the form of immediately available funds shall not be credited until such
funds become immediately available, and with respect to payments by check
such credit shall be provisional until the item is finally paid by the payor
bank.
(iii) Certain Receipts need not be deposited. The foregoing
--------------------------------------
requirements for deposits into the Construction Loan Servicing Account shall
be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, if Penalty Charges and Construction Loan
Processing Fees are received from a Construction Borrower, such amounts need
not be deposited in the Construction Loan Servicing Account by the Servicer
to the extent that the Servicer or the Special Servicer is entitled to such
amounts pursuant to the express provisions of this Agreement; and, to the
extent permitted by applicable law and the related Loan Documents, the
Servicer (or, if applicable in accordance with this Agreement, the Special
Servicer) shall be entitled to retain any such charges and fees received with
respect to the Construction Loans. In the event that the Servicer deposits
in the Construction Loan Servicing Account any amount not required to be
deposited therein, the Servicer may at any time withdraw such amount
therefrom.
(n) Permitted Withdrawals from the Construction Loan Servicing Account.
------------------------------------------------------------------
The Servicer may make withdrawals from the Construction Loan Servicing
Account only as described below (the order set forth below not constituting
an order of priority for such withdrawals):
(i) on or before each Servicer Remittance Date, to remit the related
Loan Servicing Remittance Amount by wire transfer in immediately available
funds to the Certificate Account;
(ii) to reimburse or pay the Servicer or any third party provider
for any other unpaid items for which the Servicer is entitled to
reimbursement or payment (other than the Construction Loan Servicing Fee)
from the Construction Loan Servicing Account;
(iii) to withdraw any amount deposited into the Construction Loan
Servicing Account that was not required to be deposited therein;
(iv) to make the payments, disbursements and withdrawals
contemplated in Sections 3.25(q)(iii)(B), 3.25(r), 3.25(s)(iii)(B) and
3.25(t); and
(v) to clear and terminate the Construction Loan Servicing Account
following the earlier of (i) the termination of this Agreement and (ii) the
retirement of all Construction Loans.
(o) Investment of Funds in Construction Loan Servicing Account.
----------------------------------------------------------
With respect to each Construction Loan, the Servicer shall, for the
benefit of the related Construction Borrower, direct any depository
institution maintaining the Construction Loan Servicing Account to invest the
funds in such account in one or more Permitted Investments. All such
investments shall be held to maturity, unless payable on demand. Any
investment of funds in the Construction Loan Servicing Account shall be made
in the name of the related Borrower. The Servicer shall have sole control
over each such investment and, pending Final Disbursement, shall be entitled
to retain, as additional servicing compensation in accordance with
Section 3.11(a), interest and investment income earned in respect of amounts
held in the Construction Loan Servicing Account (but only to the extent of
the Net Investment Earnings with respect to such amounts for any period from
any Distribution Date to the immediately succeeding Servicer Remittance Date)
and provided that the Servicer shall pay or cause to be paid to each
Construction Borrower its allocable share of interest and investment income
earned on funds in the Construction Loan Servicing Account, to the extent
required by law or the terms of the related Construction Loan.
Neither the Servicer nor the Special Servicer shall bear any risk of any
Net Investment Losses incurred from the investment of funds in the
Construction Loan Servicing Account pursuant to this Section and the Servicer
shall in no way be responsible or liable for any such Net Investment Losses.
If the investment of such funds results in any Net Investment Losses, each
Construction Borrower shall be required to fund its allocable share of such
Net Investment Losses to the extent the resulting funds available for the
related Construction Loan are inadequate to complete the construction of the
applicable CVS Improvements or are inadequate to make the interest payments
required from the Construction Loan Interest Reserve.
The Servicer shall maintain continuous possession of any Permitted
Investment of amounts in the Construction Loan Servicing Account to the
extent such investment is either (i) a "certificated security," as such term
is defined in the UCC or (ii) other property in which a secured party may
perfect its security interest by possession under the UCC or any other
applicable law. Possession of any such Permitted Investment by the Servicer
shall constitute possession by the Trustee, as secured party, for purposes of
Section 9-305 of the UCC and any other applicable law. In the event amounts
on deposit in the Construction Loan Servicing Account are at any time
invested in a Permitted Investment payable on demand, the Servicer shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the
lesser of (a) all amounts then payable thereunder and (b) the amount
required to be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Servicer or the Trustee, as the case may be, that
such Permitted Investment would not constitute a Permitted Investment in
respect of funds thereafter on deposit in the Construction Loan
Servicing Account.
(p) Sub-Accounts. The Construction Loan Servicing Account shall be
------------
comprised of the following sub-account entries for each Construction Loan:
(i) the Construction Loan Interest Reserve Sub-Account; (ii) the Construction
Funding Sub-Account; and (iii) the Loan Servicing Sub-Account.
(q) Construction Loan Interest Reserve Sub-Account.
----------------------------------------------
(i) Establishment of Sub-Account. Within the Construction Loan
----------------------------
Servicing Account, there shall be established, for each Construction Loan, an
account entry to be designated the "Construction Loan Interest Reserve
Sub-Account."
(ii) Allocation to Sub-Account. The Servicer shall cause to be
-------------------------
allocated to each Construction Loan's Construction Loan Interest Reserve
Sub-Account, when received as to such Construction Loan, that portion of the
related Initial Disbursement Advance designated by the Construction Lender as
the Construction Loan Interest Reserve.
(iii) Disbursements from Sub-Account. Funds in each Construction
------------------------------
Loan Interest Reserve Sub-Account on each Determination Date shall be
disbursed as follows:
(A) If such Determination Date occurs prior to the second Due Date
following the Date of Rent Commencement under the related Construction
Loan Lease, a book-entry transfer of the amount required by the related
Loan Documents to be applied during the related Due Period as payment on
such Construction Loan shall be made by the Servicer to the related Loan
Servicing Sub-Account.
(B) If such Determination Date occurs after the first Due Date
following the Date of Rent Commencement under the related Construction
Loan Lease, any funds remaining in such Construction Loan Interest
Reserve Sub-Account (after giving effect to the making of any book-entry
transfer described in clause (iii)(A) above on such Determination Date)
shall be disbursed by the Servicer in accordance with such Loan
Documents, so long as no default or event of default of which the
Servicer has actual knowledge exists under such Loan Documents;
provided, however, that if the Servicer has actual knowledge of any such
--------- -------
default or event of default, the Servicer shall give the Special
Servicer prompt notice thereof, and, unless and until such default or
event of default is cured, such remaining funds shall be retained in
such Construction Loan Interest Reserve Sub-Account (to the extent
permitted by such Loan Documents) pending instructions to the Servicer
from (or, if such default or event of default constitutes a Servicing
Transfer Event, action by) the Special Servicer. The Servicer shall
follow such instructions, if any, upon receipt from the Special
Servicer.
(r) Construction Funding Sub-Account.
--------------------------------
(i) Establishment of Sub-Account. Within the Construction Loan
----------------------------
Servicing Account, there shall be established, for each Construction Loan, an
account entry to be designated the "Construction Funding Sub-Account".
(ii) Allocation to Sub-Account. With respect to each
-------------------------
Construction Loan, the Servicer shall cause to be deposited into the
Construction Loan Servicing Account, for allocation to such Construction
Loan's Construction Funding Sub-Account, (x) that portion of the related
Initial Disbursement Advance not designated as the Construction Loan Interest
Reserve for such Construction Loan pursuant to Section 3.25(q)(ii) and
(y) any funds received by the Servicer from CVS for the purpose of satisfying
Draw Requests.
(iii) Disbursements from Sub-Account. Funds in each Construction
------------------------------
Funding Sub-Account shall be disbursed as follows:
(A) in connection with any Draw Request or Final Draw Request for
such Construction Loan, the Servicer, subject to and in accordance with
Sections 3.25(e), 3.25(f) and 3.25(g) of this Agreement, shall disburse
to the related Construction Borrower or its designee an amount equal to
such Draw Request or Final Draw Request from amounts available in such
Construction Funding Sub-Account; and
(B) any Construction Loan Excess Funds shall be disbursed by the
Servicer pursuant to Section 3.25(k) of this Agreement.
(s) Loan Servicing Sub-Account.
--------------------------
(i) Establishment of Sub-Account. Within the Construction Loan
----------------------------
Servicing Account, there shall be established, for each Construction Loan, an
account entry to be designated the "Loan Servicing Sub-Account".
(ii) Allocation to Sub-Account. The Servicer shall cause funds
-------------------------
with respect to a Construction Loan that are deposited into the Construction
Loan Servicing Account in accordance with Sections 3.25(m)(i)(A) through (I)
(after giving effect to any book-entry transfer, from the related
Construction Loan Interest Reserve Sub-Account, of funds in the amount of the
related Interest Reserve Remittance Amount) to be allocated to such
Construction Loan's Loan Servicing Sub-Account.
(iii) Disbursements from Sub-Account. Funds in each Loan Servicing
------------------------------
Sub-Account on each Determination Date shall be disbursed:
(A) by the Servicer to the Certificate Account on or before the
related Servicer Remittance Date, to the extent of the Loan Servicing
Remittance Amount for such Servicer Remittance Date; and
(B) by the Servicer to the related Construction Borrower, so long as
no default or event of default of which the Servicer has actual
knowledge exists under the related Loan Documents, to the extent of any
monies remaining in such Loan Servicing Sub-Account on each Servicer
Remittance Date after paying all of the amounts described above and
after retaining an amount equal to any Rents from Real Property or other
monies received prior to the date such Rents from Real Property or other
monies are due and payable by the related Tenant; provided, however,
--------- -------
that if the Servicer has actual knowledge of any such default or event
of default, the Servicer shall give the Special Servicer prompt notice
thereof, and, unless and until such default or event of default is
cured, such remaining funds shall be retained in such Loan Servicing
Sub-Account (to the extent permitted by such Loan Documents) pending
instructions to the Servicer from (or, if such default or event of
default constitutes a Servicing Transfer Event, action by) the Special
Servicer. The Servicer shall follow such instructions, if any, upon
receipt from the Special Servicer.
(t) Return of Deposits to Construction Borrower. Following payment in
-------------------------------------------
full of a Construction Loan and any other obligations (including, without
limitation, principal, interest, Prepayment Premiums and/or Yield Maintenance
Charges, if any, legal fees and expenses) owed by a Construction Borrower,
all collected amounts then held in the Construction Loan Servicing Account in
any of such Construction Loan's Sub-Accounts, less any amounts owed to the
Servicer relative to such Construction Loan (other than the Construction Loan
Servicing Fee), shall be paid by the Servicer to the Construction Borrower.
(u) Monthly Accounting Reports.
--------------------------
(i) Until (and including) the date of the Final Disbursement, the
Servicer shall prepare, and shall deliver to the Special Servicer and CVS on
each Servicer Remittance Date, monthly accounting reports regarding the
Construction Loans in the forms attached hereto as Exhibit N, tracking the
amounts disbursed and the amounts available, by major budget item and total,
on a Loan-by-Loan basis as of the end of the month preceding such Servicer
Remittance Date.
(ii) CVS's report copies shall be sent to CVS at the address
designated by CVS from time to time.
SECTION 3.26. RESERVED
SECTION 3.27. Limitation on Liability of the Directing
----------------------------------------
Certificateholder.
- -----------------
The Directing Certificateholder shall not have any responsibility or
liability to the Trust Fund or any other Class or Classes of
Certificateholders for any action taken, or for refraining from the taking of
any action, in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the
--------- -------
Directing Certificateholder against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of grossly negligent disregard of
obligations or duties hereunder. By its acceptance of a Certificate, each
Certificateholder confirms its understanding that the Directing
Certificateholder may take actions that favor the interests of one or more
Classes of the Certificates over other Classes of the Certificates and that
the Directing Certificateholder may have special relationships and interests
that conflict with those of Holders of some Classes of the Certificates and,
absent willful misfeasance, bad faith, negligence or negligent disregard of
obligations or duties on the part of the Directing Certificateholder, agrees
to take no action against the Directing Certificateholder as a result of
such a special relationship or conflict.
SECTION 3.28. Reports to the Securities and Exchange Commission;
-------------------------------------------------
Available Information.
- ---------------------
(a) The Trustee shall prepare and sign, on behalf of the Depositor, any
and all Exchange Act Reports; provided, however, that the Depositor shall
--------- -------
prepare, sign and file with the Commission the initial Form 8-K relating to
the Trust Fund. Each Exchange Act Report shall be prepared as an exhibit
or exhibits to a Form 8-K. Each Exchange Act Report consisting of an
Annual Compliance Report shall be prepared as an exhibit to an Annual Report
on Form 10-K and shall identify the aggregate number of Holders of Public
Certificates and Depository Participants holding positions in Public
Certificates as of January 1 (or the nearest Business Day if such date is
not a Business Day) of the related year.
For each Exchange Act Report, the Servicer and, if applicable, the
Special Servicer, shall prepare (i) manually signed paper versions of their
respective Annual Compliance Reports and (ii) electronic versions of such
reports, which versions shall be prepared as Microsoft Word for Windows files
(or in such other electronic format as to which the Trustee, on the one hand,
and the Servicer or the Special Servicer, as applicable, on the other hand,
may agree).
Exchange Act Reports consisting of (i) a monthly Distribution Date
Statement shall be filed within ten days after the related Distribution Date;
(ii) a Comparative Financial Status Report, Delinquent Loan Status Report,
Historical Loss Estimate Report, Historical Loan Modification Report, REO
Status Report, Operating Statement Analysis, Servicer Watch List, or report
pursuant to Section 4.02(b) shall be filed within ten days after each
Distribution Date; and (iii) an Annual Compliance Report shall be filed on or
prior to March 15 of each calendar year. The Trustee shall file each
Exchange Act Report with the Commission by means of the "EDGAR" system in a
manner and in a format required by Regulation S-T. Manually-signed copies of
each Exchange Act Report shall be delivered by Trustee to the Depositor,
Attention: Legal/Compliance/Colleen Graham.
If any Exchange Act Report is incomplete by the date on which such
report is required to be filed under the Exchange Act, the Trustee, or with
respect to any Annual Compliance Report relating to the Servicer, the
Servicer, or, with respect to any Annual Compliance Report relating to the
Special Servicer, the Special Servicer, shall prepare and execute a Form
12b-25 under the Exchange Act and the Special Servicer shall deliver an
electronic version of such form to the Trustee for filing with the
Commission. The Special Servicer shall deliver the related report in
electronic form to the Trustee when such information is available. The
Servicer shall be deemed not to be in default of Section 3.14 if it fails to
deliver a USAP report at the required time provided that it complies with
this paragraph and prepares and executes a Form 12b-25 under the Exchange Act
and delivers an electronic version of such form to the Trustee for filing
with the Commission.
None of the Servicer, the Special Servicer and the Trustee shall file a
Form ID with respect to the Depositor. Unless the Trustee receives written
instructions from the Depositor to the contrary, upon receipt of information
from the Trustee indicating that there are fewer than 300 Certificateholders
and/or Depository Participants, in the aggregate, the Trustee shall prepare a
Form 15 relating to the Trust Fund, file such Form 15 with the Commission and
send a copy thereof to the Depositor, Attention: Legal/Compliance/Colleen
Graham.
The Trustee shall solicit any and all proxies of the Certificateholders
whenever such proxies are required to be solicited pursuant to the Exchange
Act.
(b) The Servicer shall, in accordance with such reasonable rules and
procedures as it may adopt, also make available any additional information
relating to the Loans, the Mortgaged Properties or the Borrowers, for review
by the Depositor, the Rating Agencies and any other Persons to whom the
Servicer believes such disclosure is appropriate, in each case except to the
extent doing so is prohibited by applicable law or by the related Loan.
(c) The Servicer and the Special Servicer shall make the following items
available at their respective offices during normal business hours, or shall
send such items to any requesting party at the expense of such requesting
party (other than the Rating Agencies and the Depositor, and except as
otherwise provided in the last sentence of this paragraph) for review by the
Depositor, the Trustee, the Rating Agencies, any Certificateholder, any
Person identified to the Servicer or the Special Servicer, as applicable, by
a Certificateholder as a prospective transferee of a Certificate and any
other Persons to whom the Servicer or the Special Servicer, as applicable,
believes such disclosure to be appropriate: (i) all financial statements,
occupancy information, rent rolls, retail sales information, average daily
room rates and similar information received by the Servicer or the Special
Servicer, as applicable, from each Borrower, (ii) the inspection reports
prepared by or on behalf of the Servicer or the Special Servicer, as
applicable, in connection with the property inspections pursuant to Section
3.19, (iii) any and all modifications, waivers and amendments of the terms of
a Loan entered into by the Servicer or the Special Servicer, as applicable
and (iv) any and all officer's certificates and other evidence delivered to
the Trustee and the Depositor to support the Servicer's determination that
any Advance was, or if made would be, a Nonrecoverable Advance. Copies of any
and all of the foregoing items shall be available from the Servicer or the
Special Servicer, as applicable, or the Trustee, upon request. Copies of all
such information shall be delivered by the Servicer or the Special Servicer,
as applicable, quarterly to the Certificate Owners of the Class I and Class J
Certificates (as identified by the related Depository Participant and for so
long as such Classes remain outstanding) at the address specified by such
Certificate Owners; provided, however, that if beneficial ownership of the
-------- -------
Class I and Class J Certificates resides in more than one Certificate Owner,
the Servicer or the Special Servicer, as applicable, shall be responsible
only for the expense of providing the first such copy of such information
and shall be entitled to reimbursement from the Trust Fund for the expense
of any additional copies so provided.
(d) Notwithstanding the obligations of the Servicer set forth in the
preceding provisions of this Section 3.28, the Servicer may withhold any
information not yet included in a Form 8-K filed with the Commission or
otherwise made publicly available with respect to which the Trustee or the
Servicer has determined that such withholding is appropriate.
(e) Notwithstanding any provisions in this Agreement to the contrary,
the Trustee shall not be required to review the content of any Exchange Act
Report for compliance with applicable securities laws or regulations,
completeness, accuracy or otherwise, and the Trustee shall have no liability
with respect to any Exchange Act Report filed with the Commission or
delivered to Certificateholders. None of the Servicer, the Special Servicer
and the Trustee shall be responsible for the accuracy or completeness of any
information supplied by a Borrower or a third party for inclusion in any Form
8-K, and each of the Servicer, the Special Servicer and the Trustee and their
respective Affiliates, agents, directors, officers and employees shall be
indemnified and held harmless by the Trust Fund against any loss, liability
or expense incurred in connection with any legal action relating to any
statement or omission or alleged statement or omission therein. None of the
Trustee, the Special Servicer and the Servicer shall have any responsibility
or liability with respect to any Exchange Act Report filed by the Depositor,
and each of the Servicer, the Special Servicer and the Trustee and their
respective Affiliates, agents, directors, officers and employees shall be
indemnified and held harmless by the Trust Fund against any loss, liability
or expense incurred in connection with any legal action relating to any
statement or omission or alleged statement or omission therein.
SECTION 3.29. Lock-Box Accounts and Servicing Accounts.
----------------------------------------
(a) The Servicer shall administer each Lock-Box Account, Cash Collateral
Account and Servicing Account in accordance with the related Mortgage or Loan
Agreement, Cash Collateral Account Agreement or Lock-Box Agreement, if any.
(b) For any Loan that provides that a Lock-Box Account will be
established upon the occurrence of certain events specified in the related
Loan Documents, the Servicer (or, with respect to any Specially Serviced
Loan, the Special Servicer) shall establish such Lock-Box Account upon the
occurrence of such events unless the Servicer (or the Special Servicer, as
applicable) determines, in accordance with the Servicing Standard, that such
Lock-Box Account should not be established. Notwithstanding the foregoing,
the Servicer (or the Special Servicer, as applicable) shall establish a Lock-
Box Account for each ARD Loan no later than its Anticipated Repayment Date.
(c) With respect to each Loan requiring the establishment of a Lock-Box
Account, the Servicer, upon receipt of the annual financial statements of
each Mortgagor, shall compare the gross revenue for the related Mortgaged
Property, as set forth in such financial statements, with the history of the
related Mortgagor's deposits into such Lock-Box Account and shall report any
discrepancies over 10% to the Special Servicer.
(d) Within 60 days after an escrow account has been established on
behalf of a Mortgagor pursuant to the terms of the related Mortgage, the
Servicer shall notify the financial institution maintaining such account of
the Trustee's security interest in the funds in such account in those
jurisdictions where required in order to perfect or maintain perfection of
the related security interest.
SECTION 3.30. Interest Reserve Account.
------------------------
(a) The Servicer shall establish, on or before the Closing Date, and
maintain the Interest Reserve Account on behalf of the Lower-Tier REMIC. As
of the Closing Date, the Interest Reserve Account shall be located at the
offices of the Servicer. The Servicer shall give notice to the Trustee, the
Special Servicer and the Depositor of the location of the Interest Reserve
Account and, prior to any change thereof, any new location of the Interest
Reserve Account. On each Servicer Remittance Date ending in any February and
on any Servicer Remittance Date ending in any January which occurs in a year
which is not a leap year, the Servicer shall deposit, in respect of each
Actual/360 Loan, into the Interest Reserve Account, an amount withheld from
the related Monthly Payment or Advance equal to one day's interest on the
Stated Principal Balance of such Actual/360 Loan as of the Due Date occurring
in the month preceding the month in which such Servicer Remittance Date
occurs at the related Net Mortgage Rate, to the extent a full Monthly Payment
or P&I Advance is made in respect thereof (all amounts so deposited in any
consecutive January and February (or, in the case of a leap year, in any
February), "Withheld Amounts").
(b) On each Servicer Remittance Date occurring in March, the Servicer
shall withdraw from the Interest Reserve Account an amount equal to the
Withheld Amounts from the preceding December and January Interest Accrual
Periods, if any, and deposit such amount (excluding any net investment income
thereon) into the Lower-Tier Distribution Account.
SECTION 3.31. Limitations on and Authorizations of the Servicer and
-----------------------------------------------------
Special Servicer with Respect to Certain Loans.
- ----------------------------------------------
(a) Prior to taking any action with respect to a Loan secured by any
Mortgaged Properties located in a "one-action" state, the Special Servicer
shall consult with legal counsel, the fees and expenses of which shall be an
expense of the Trust Fund.
(b) With respect to any Loan which permits the related Borrower, with
the consent or grant of a waiver by the mortgagee, to incur additional
indebtedness or to amend or modify the related Borrower's organizational
documents, the Special Servicer may consent to either such action, or grant a
waiver with respect thereto, only if the Special Servicer determines that
such consent or grant of waiver is likely to result in a greater recovery on
a present value basis (discounted at the related Mortgage Rate) than the
withholding of such consent or grant of waiver, and the Special Servicer
first obtains written confirmation from each Rating Agency that such consent
or grant of waiver would not, in and of itself, result in a downgrade,
qualification or withdrawal of any of the then current ratings assigned to
the Certificates. The Servicer shall not be entitled or required to consent
to, or grant a waiver with respect to, either action.
(c) With respect to all ARD Loans, the Servicer and the Special Servicer
shall not take any enforcement action with respect to the payment of Excess
Interest or principal in excess of the principal component of the constant
Monthly Payment, other than requests for collection, until the maturity date
of the related Loan. The foregoing shall not limit the Servicer and Special
Servicer's obligation to establish a Lock-Box Account pursuant to Section
3.29.
(d) With respect to the Loans that (i) require earthquake insurance, or
(ii) (A) at the date of origination were secured by Mortgaged Properties on
which the related Borrower maintained earthquake insurance and (B) have
provisions which enable the Servicer to continue to require the related
Borrower to maintain earthquake insurance, the Servicer shall require the
related Borrower to maintain such insurance in the amount, in the case of
clause (i), required by the Loan and in the amount, in the case of this
clause (ii), maintained at origination, in each case, to the extent such
amounts are available at commercially reasonable rates. Any determination by
the Servicer that such insurance is not available at commercially reasonable
rates with respect to a Loan for which any related Mortgaged Property has a
"Probable Maximum Loss", bounded on the basis of 50 years, in excess of 20%
shall be subject to confirmation by Fitch that such determination not to
purchase such insurance will not result in a downgrade, qualification or
withdrawal of the then current ratings assigned to the Certificates rated by
Fitch.
(e) (i) Within 10 days after the Closing Date, the Special Servicer
shall notify Chubb Custom Insurance Company and Lexington Insurance Company
(each such insurer, together with any assignee, successor or subsequent
insurer, a "Credit Lease Enhancement Policy Issuer") that both the Servicer
and the Special Servicer shall be sent notices under each "Credit Lease
Enhancement Policy". In the event that the Servicer has actual knowledge of
any event (an "Insured Event") giving rise to a claim under any Credit Lease
Enhancement Policy, the Servicer shall notify the Special Servicer thereof
within three Business Days after learning of such event. The Special
Servicer shall prepare and file a "proof of loss" form with the related
Credit Lease Enhancement Policy Issuer within five Business Days after
receiving notice of any Insured Event under the related policy and shall
diligently process any claims under such policy in accordance with the
Servicing Standard. The Special Servicer shall give notice to the Servicer
of any claim made under any Credit Lease Enhancement Policy and of any Credit
Lease Enhancement Policy Termination Event of which the Servicer does not
already have notice.
(ii) In the event that the Servicer receives notice of any abatement,
rescission, cancellation, termination, contest, legal process, arbitration or
disavowal of liability with respect to any Credit Lease Enhancement Policy
(each, a "Credit Lease Enhancement Policy Termination Event"), the Servicer
shall, within three Business Days after receipt of such notice, notify the
Special Servicer of such Credit Lease Enhancement Policy Termination Event in
writing. Upon receipt of such notice, the Special Servicer shall,
notwithstanding that the servicing of the related Loan may not have been
transferred to the Special Servicer in accordance with Section 3.21 hereof,
address such Credit Lease Enhancement Policy Termination Event in accordance
with the Servicing Standard. Any legal fees incurred in connection with a
resolution of a Credit Lease Enhancement Policy Termination Event shall be
paid by the Servicer and shall be reimbursable to it as a Trust Fund expense.
(f) With respect to each Borrower that has been established as a
"bankruptcy-remote entity", the Servicer shall not consent to (y) the
amendment by such Borrower of its organizational documents or (z) any action
that would violate any covenant of such Borrower relating to its status as a
separate or bankruptcy-remote entity. The Servicer shall promptly forward to
the Special Servicer any request received by the Servicer from a Borrower for
any such consent.
(g) Without limiting the Servicer's obligations in accordance with the
Servicing Standard, with respect to each Loan having an initial principal
balance in excess of $20,000,000, at least once before the date that is two
years before the earlier to occur of such Loan's Maturity Date or Anticipated
Repayment Date, the Servicer shall, in connection with an inspection of the
related Mortgaged Property, or otherwise, request to review the records of
the related Borrower (including minute books) and endeavor to contact the
related "independent director" (if one was required) to determine whether the
related Mortgagor has complied in all material respects with the bankruptcy-
remoteness covenants, if any, made by such Mortgagor in the related Mortgage.
(h) In connection with a proposed substitution of the collateral
securing any Construction Loan, the Special Servicer shall determine the
adequacy of the collateral proposed to be substituted and shall not consent
to such substitution unless it has obtained written confirmation from each
Rating Agency that such substitution would not result in a downgrade,
withdrawal or qualification of any rating on a Class of Certificates rated by
such Rating Agency. Neither the Servicer nor the Special Servicer shall
consent to the waiver or extension of the period within which either (i) a
CVS Store must be completed or (ii) CVS must provide substitute collateral or
prepay the related Construction Loan. The Special Servicer shall enforce the
obligations of CVS with respect to such substitution or prepayment. As a
condition to confirming the adequacy of the collateral proposed to be
substituted for a CVS Store upon the failure to complete construction of such
CVS Store by the related Outside Completion Date, the Special Servicer shall
require CVS to deliver, at CVS's expense, an Opinion of Counsel to the effect
that the substitution of such collateral would not cause the Upper-Tier REMIC
or the Lower-Tier REMIC to fail to qualify as a REMIC. Copies of such
Opinion of Counsel shall be delivered to each Rating Agency (and to the
Special Servicer) as a condition to such Rating Agency's confirming in
writing that such substitution would not cause such Rating Agency to
downgrade, qualify or withdraw any of its then-current ratings on any Class
of Certificates.
(i) The Servicer shall not consent to a change of franchise affiliation
with respect to any hotel property that in whole or in part constitutes the
Mortgaged Property securing a Loan unless it obtains written confirmation
from each Rating Agency that such change of franchise affiliation would not,
in and of itself, result in a downgrade, qualification or withdrawal of the
then-current ratings on any Class of Certificates.
SECTION 3.32. REMIC Administration.
--------------------
(a) The Trustee shall make an election to treat each of the Lower-Tier
REMIC and the Upper-Tier REMIC as a REMIC under the Code and if necessary,
under State Tax Laws. Each such election will be made on Form 1066 or other
appropriate federal tax or information return (including Form 8811) or any
appropriate state return for the taxable year ending on the last day of the
calendar year in which the Certificates are issued. To the extent the
affairs of the Trust Fund are within their control, the Servicer and the
Trustee shall not permit the creation of any "interests" (within the meaning
of Section 860G of the Code) in either of the Lower-Tier REMIC or the Upper-
Tier REMIC other than the Uncertificated Lower-Tier Interests (excluding the
Class LR Certificates) and the Certificates. The Construction Loan Servicing
Account created pursuant to Section 3.25 shall not be an asset of either
REMIC and shall be separately accounted for and treated as an "outside
reserve fund" for purposes of Treasury regulation section 1.860G-2(h), and
the funds in the Construction Loan Servicing Account allocable to a given
Construction Loan shall be deemed owned by the related Borrower.
(b) The Closing Date is hereby designated as the "Startup Day" for each
REMIC within the meaning of Section 860G(a)(9) of the Code.
(c) The Holder of the Class LR Certificate is hereby designated, and by
the acceptance of the Class LR Certificate agrees to act, as Tax Matters
Person for the Lower-Tier REMIC. Any Holder of the Class LR Certificate must
at all times hold a 100% Percentage Interest therein. The Holder of the
Class R Certificate is hereby designated, and by the acceptance of the Class
R Certificate agrees to act, as Tax Matters Person for the Upper-Tier REMIC.
(d) The Tax Matters Person hereby irrevocably authorizes the Trustee to
be its attorney-in-fact for purposes of signing all Tax Returns.
(e) The Trustee shall prepare or cause to be prepared all of the Tax
Returns that it reasonably determines are required with respect to either
REMICs created hereunder and shall sign and file such Tax Returns in a timely
manner. The expenses of preparing such returns shall be borne by the Trustee
without any right of reimbursement therefor.
(f) The Trustee shall provide (i) upon request by any Transferor of a
Class LR or Class R Certificate such information to such Transferor and the
IRS as is (x) reasonably necessary for the application of any tax relating to
the transfer of a Class LR or Class R Certificate to any Person who is not a
Permitted Transferee or (y) otherwise required to be provided by Treasury
Regulation Section 1.860E-2 (and in the time and manner required to be
provided to such person under such Regulation), (ii) to the
Certificateholders such information or reports as are required by the Code,
the REMIC Provisions or State Tax Laws including reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption) and (iii) to the Internal Revenue Service the name,
title, address and telephone number of the person who will serve as the
representative of each of the REMICs.
(g) The Trustee shall take such actions and shall cause each REMIC
created hereunder to take such actions as are reasonably within the Trustee's
control and the scope of its duties more specifically set forth herein as
shall be necessary to maintain the status thereof as REMICs under the REMIC
Provisions (and the Servicer shall assist the Trustee, to the extent
reasonably requested by the Trustee to do so). None of the Servicer, the
Special Servicer or the Trustee shall knowingly or intentionally take any
action, cause either of the Lower-Tier REMIC or the Upper-Tier REMIC to take
any action or fail to take (or fail to cause to be taken) any action
reasonably within its control and the scope of duties more specifically set
forth herein, that, under the REMIC Provisions, if taken or not taken, as the
case may be, could (i) cause the Lower-Tier REMIC or the Upper-Tier REMIC to
fail to qualify as a REMIC or (ii) result in the imposition of a tax under
the REMIC Provisions upon either the Lower-Tier REMIC or the Upper-Tier REMIC
(including but not limited to the tax on prohibited transactions as defined
in Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set
forth in Section 860G(d) of the Code) (either such event, an "Adverse REMIC
Event") unless such party receives an Opinion of Counsel (at the expense of
the party seeking to take such action or, if such party fails to pay such
expense, and such party determines that taking such action is in the best
interest of the Trust Fund and the Certificateholders, at the expense of the
Trust Fund, but in no event at the expense of such party) to the effect that
the contemplated action will not, with respect to any of the REMICs created
hereunder, cause either REMIC to fail to qualify as a REMIC or, unless such
party determines in its sole discretion to indemnify the Trust Fund against
such tax, result in the imposition of such a tax.
(h) In the event that any tax is imposed on "prohibited transactions" of
any REMIC created hereunder as defined in Section 860F(a)(2) of the Code, on
"net income from foreclosure property" of any REMIC as defined in Section
860G(c) of the Code, or any other tax is imposed by the Code or any
applicable provisions of state or local tax laws, such tax shall be charged
(i) to a Servicer, if such tax arises out of or results from a breach by such
Servicer of any of its obligations under this Agreement and such breach is
not caused by the breach of another party, (ii) to the Trustee, if such tax
arises out of or results from a breach by the Trustee of any of its
obligations under this Agreement and such breach is not caused by the breach
of another party and (iii) otherwise, against amounts on deposit in the
Certificate Account, and on the Distribution Date(s) following such
reimbursement the aggregate of such taxes shall be allocated in reduction of
the Optimal Interest Distribution Amount on each Class entitled thereto in
the same manner as if such taxes constituted an Uncovered Prepayment Interest
Shortfall.
(i) The Trustee shall, for federal income tax purposes, maintain books
and records with respect to each REMIC on a calendar year and on an accrual
basis or as otherwise may be required by the REMIC Provisions.
(j) Following the Startup Day, neither the Servicer nor the Trustee
shall accept any contributions of assets to either REMIC unless the Servicer
and the Trustee shall have received an Opinion of Counsel (at the expense of
the party seeking to make such contribution) to the effect that the inclusion
of such assets in either REMIC will not cause either REMIC to fail to qualify
as REMICs at any time that any Certificates are outstanding or subject either
REMIC to any tax under the REMIC Provisions or other applicable provisions of
federal, state and local law or ordinances.
(k) Neither the Servicer, the Special Servicer nor the Trustee shall
enter into any arrangement by which either REMIC will receive a fee or other
compensation for services nor, to the extent reasonably within their control,
permit either such REMIC to receive an income from assets other than
"qualified mortgages" as defined in Section 860G(a)(3) of the Code or
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(l) For the purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the "latest possible maturity date" by which the Class Balance
of each Class of Certificates representing a regular interest in the Upper-
Tier REMIC would be reduced to zero is the Rated Final Distribution Date.
(m) Within 30 days after the Closing Date, the Trustee shall prepare and
file with the Internal Revenue Service Form 8811, "Information Return for
Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" (or applicable successor form) for both the
Lower-Tier REMIC and the Upper-Tier REMIC.
(n) None of the Trustee, the Servicer or the Special Servicer shall sell
or dispose of any of the Loans (except in connection with (i) the default,
imminent default or foreclosure of a Loan, including but not limited to, the
acquisition or sale of a Mortgaged Property acquired by deed in lieu of
foreclosure, (ii) the bankruptcy of either REMIC, (iii) the termination of
either REMIC pursuant to Article X of this Agreement or (iv) a purchase of
Loans pursuant to Article II of this Agreement) nor acquire any assets for
either REMIC, nor sell or dispose of any investments in the Certificate
Account for gain, nor accept any contributions to either REMIC after the
Closing Date, unless it has received an Opinion of Counsel that such sale or
disposition will not affect adversely the status of either REMIC as a REMIC.
(o) The Depositor shall provide or cause to be provided to the Trustee,
within ten (10) days after the Closing Date, and thereafter on an ongoing
basis, all information or data requested by the Trustee that the Trustee
reasonably determines to be relevant for tax purposes as to the valuations
and issue prices of the Certificates, including without limitation, the
price, yield, original issue discount, market discount or premium and
projected cash flow of the Certificates. In addition, the Servicer, the
Special Servicer and the Depositor shall provide on a timely basis to the
Trustee or its designee such information with respect to the Trust Fund as is
in its possession and reasonably requested by the Trustee to enable it to
perform its obligations under this Article. The Trustee shall be entitled to
rely conclusively upon all such information so provided to it without
recalculation or other investigation.
(p) The Trustee shall be entitled to reasonable compensation and to the
reimbursement of its reasonable expenses incurred in the performance of its
duties under this Section 3.32 as may be agreed upon by the Trustee and the
Depositor, provided that the Trustee shall pay out of its own funds, without
any right of reimbursement, any and all ordinary expenses of the Trust Fund
incurred in the performance of its duties under this Article but shall be
reimbursed, except as otherwise expressly provided for herein by the Trust
Fund for any of its extraordinary expenses, including any taxes or tax-
related payments, any expenses involved in any tax examination, audit or
proceeding, and the expense of any tax-related Opinion of Counsel or other
professional advice requested by the Trustee for the benefit or protection of
the Certificateholders.
(q) The Trustee shall treat the rights of the Certificateholders to
receive Yield Protection Payments as assets that the Trustee holds separate
and apart from the Certificateholders' respective portions of the
Certificates treated as REMIC regular interests, and shall treat the
Certificateholders as owning their respective portions of the Certificates
treated as REMIC regular interests and their respective portions of the
rights to receive Yield Protection Payments represented by the respective
Certificates. Notwithstanding any other provision of this Agreement, the
rights of the Certificateholders to receive Yield Protection Payments will
not be treated as assets of the Upper-Tier REMIC or the Lower-Tier REMIC
pursuant to this Agreement.
(End of Article III)
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
------------------------------
SECTION 4.01. Distributions.
-------------
(a) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Trustee shall transfer
such amounts from the Lower-Tier Distribution Account to the Upper-Tier
Distribution Account in the amounts and priorities set forth in Section
4.01(b) with respect to each class of Uncertificated Lower-Tier Interests,
and immediately thereafter, shall make distributions thereof from the Upper-
Tier Distribution Account in the following order of priority, satisfying in
full, to the extent required and possible, each priority before making any
distribution with respect to any succeeding priority from the Available
Distribution Amount:
(A) in respect of interest, concurrently, to the Class A-1, Class
A-2, Class A-3 and Class A-X Certificates, such Classes' respective
Optimal Interest Distribution Amounts for such Distribution Date;
(B) to the Class A Certificates, in reduction of the Certificate
Balances thereof, an amount up to the Principal Distribution Amount for
such Distribution Date, in the following order of priority:
first, to the Class A-1 Certificates, until the Certificate
Balance thereof is reduced to zero;
second, to the Class A-2 Certificates, until the Certificate
Balance thereof is reduced to zero; and
third, to the Class A-3 Certificates, until the Certificate
Balance thereof is reduced to zero;
(C) to the Class A-1, Class A-2 and Class A-3 Certificates, pro rata
(based upon the aggregate unreimbursed Collateral Support Deficit
previously allocated to each such Class), until all amounts of such
Collateral Support Deficit previously allocated to such Classes, but not
previously reimbursed, have been reimbursed in full;
(D) to the Class B Certificates, in respect of interest, the Optimal
Interest Distribution Amount for such Class for such Distribution Date;
(E) to the Class B Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has
been reduced to zero;
(F) to the Class B Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class B Certificates, but
not previously reimbursed, have been reimbursed in full;
(G) to the Class C Certificates, in respect of interest, the Optimal
Interest Distribution Amount for such Class for such Distribution Date;
(H) to the Class C Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has
been reduced to zero;
(I) to the Class C Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class C Certificates, but
not previously reimbursed, have been reimbursed in full:
(J) to the Class D Certificates, in respect of interest, the Optimal
Interest Distribution Amount for such Class for such Distribution Date;
(K) to the Class D Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has
been reduced to zero;
(L) to the Class D Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class D Certificates, but
not previously reimbursed, have been reimbursed in full;
(M) the Class E Certificates, in respect of interest, the Optimal
Interest Distribution Amount for such Class for such Distribution Date;
(N) to the Class E Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has
been reduced to zero;
(O) to the Class E Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class E Certificates, but
not previously reimbursed, have been reimbursed in full;
(P) to the Class F Certificates, in respect of interest, the Optimal
Interest Distribution Amount for such Class for such Distribution Date;
(Q) to the Class F Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has
been reduced to zero;
(R) to the Class F Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class F Certificates, but
not previously reimbursed, have been reimbursed in full;
(S) to the Class G Certificates, in respect of interest, the Optimal
Interest Distribution Amount for such Class for such Distribution Date;
(T) to the Class G Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has
been reduced to zero;
(U) to the Class G Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class G Certificates, but
not previously reimbursed, have been reimbursed in full;
(V) to the Class H Certificates, in respect of interest, the Optimal
Interest Distribution Amount for such Class for such Distribution Date;
(W) to the Class H Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has
been reduced to zero;
(X) to the Class H Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class H Certificates, but
not previously reimbursed, have been reimbursed in full;
(Y) to the Class I Certificates, in respect of interest, the Optimal
Interest Distribution Amount for such Class for such Distribution Date;
(Z) to the Class I Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has
been reduced to zero;
(AA) the Class I Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class I Certificates, but
not previously reimbursed, have been reimbursed in full;
(AB) to the Class J Certificates, in respect of interest, the
Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(AC) to the Class J Certificates, in reduction of the Certificate
Balance thereof, an amount up to the Remaining Principal Distributable
Amount for such Distribution Date until such Certificate Balance has
been reduced to zero;
(AD) to the Class J Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class J Certificates, but
not previously reimbursed, have been reimbursed in full; and
(AE) to the Class R Certificates, the amount, if any, of the
Available Distribution Amount remaining in the Upper-Tier Distribution
Account with respect to such Distribution Date.
(b) On each Distribution Date, each Uncertificated Lower-Tier Interest
shall receive distributions from the Lower-Tier Distribution Account in
respect of principal or reimbursement of Collateral Support Deficit in an
amount equal to the amount of principal or reimbursement of Collateral
Support Deficit distributable to such Uncertificated Lower-Tier Interest's
respective Class of Related Certificates as provided in Sections 4.01(a) and
(c). Between each Distribution Date, each Uncertificated Lower-Tier Interest
shall accrue interest in an amount equal to the principal balance of each
such Uncertificated Lower-Tier Interest multiplied by the Weighted Average
Net Mortgage Rate. On each Distribution Date, each Uncertificated Lower-Tier
Interest shall receive distributions in respect of interest in an amount
equal to the amount of interest that will actually be distributed in respect
of such Uncertificated Lower-Tier Interest's Related Certificate and such
Uncertificated Lower-Tier Interest's corresponding Class A-X Component. In
all events, the amount accrued in respect of each Uncertificated Lower-Tier
Interest less the amount actually distributed in respect of such
Uncertificated Lower-Tier Interest should equal the sum of (i) the Interest
Shortfall Amount allocated to such Uncertificated Lower-Tier Interest's
Related Certificates, (ii) the Interest Shortfall Amount allocated to the
Class A-X Certificates and attributable to such Uncertificated Lower-Tier
Interest and (iii) any Certificate Deferred Interest allocated to such
Uncertificated Lower-Tier Interest. Any amounts remaining in the Lower-Tier
REMIC after payment to the Uncertificated Lower-Tier Interest and payment of
expenses of the Trust Fund shall be distributed to the Class LR Certificate.
Such amounts distributed to the Uncertificated Lower-Tier Interests in
respect of principal, interest and reduction of Collateral Support Deficit
with respect to any Distribution Date are referred to herein collectively as
the "Lower-Tier Distribution Amount" and shall be made by the Trustee by
depositing such Lower-Tier Distribution Amount in the Upper-Tier Distribution
Account.
As of any date, payments of principal in respect of the Loans and the
Collateral Support Deficit will be allocated to the Uncertificated Lower-Tier
Interests such that the sum of the principal balance of each Uncertificated
Lower-Tier Interest and the amount of Collateral Support Deficit allocated to
such Class of Uncertificated Lower-Tier Interests equals the Certificate
Balance of the Related Certificates with respect thereto and the amount of
Collateral Support Deficit allocated to such Class of Related Certificates.
The initial principal balance of each Uncertificated Lower-Tier Interest
equals the respective Original Lower-Tier Principal Amount. The pass-through
rate with respect to each Uncertificated Lower-Tier Interest will be the rate
per annum set forth in the Preliminary Statement hereto.
Interest Shortfall Amounts allocated to the Class A-X Certificates shall
be attributed first to the most senior Uncertificated Lower-Tier Interest
outstanding to the extent of its Class A-X Component and then to the next
most senior Uncertificated Lower-Tier Interest to the extent of its Class A-X
Component until all such amounts are allocated. Any amounts so allocated
shall have the same seniority as payments due the Class A-X Certificates.
Interest shall be treated as accrued rather than paid on an Uncertificated
Lower-Tier Interest to the extent that its Related Class of Certificates is
treated as earning Certificate Deferred Interest, and any such interest shall
be added to the principal balance of such Uncertificated Lower-Tier Interest
so as to cause its principal balance to conform to the principal balance of
its Related Class of Certificates. Any amount that remains in the Lower-Tier
Distribution Account on each Distribution Date after distribution of the
Lower-Tier Distribution Amount shall be distributed to the Holders of the
Class LR Certificates (but only to the extent of the Available Distribution
Amount for such Distribution Date remaining in the Lower-Tier Distribution
Account, if any). Prepayment Interest Shortfalls shall be allocated to each
class of Uncertificated Lower-Tier Interests on the basis of their respective
interest entitlements.
(c) Notwithstanding the foregoing, on each Distribution Date occurring
on or after the Credit Support Crossover Date, the Principal Distribution
Amount will be distributed, pro rata, to the Class A-1, Class A-2 and Class
A-3 Certificates in proportion to such Classes' respective Certificate
Balances, in reduction thereof, until the Certificate Balance of each such
Class has been reduced to zero.
(d) On each Distribution Date, the Trustee shall withdraw from the
Lower-Tier Distribution Account an aggregate amount equal to all Prepayment
Premiums and Yield Maintenance Charges actually collected on the Loans or any
REO Loans during the related Due Period and shall distribute such amount to
all Uncertificated Lower-Tier Interests pro rata in proportion to their
outstanding principal balances.
(e) On each Distribution Date, the Servicer shall deposit all Prepayment
Premiums in the Lower-Tier Distribution Account for payment to the
Uncertificated Lower-Tier Interests pro rata in proportion to their
respective principal balances. On each Distribution Date, until the
Certificate Balances of the Class A-1, Class A-2, Class A-3, Class B, Class
C, Class D and Class E Certificates have each been reduced to zero, the
Trustee shall withdraw any amounts on deposit in the Upper-Tier Distribution
Account that represent Prepayment Premiums actually collected on Loans or REO
Loans during the related Due Period and remitted in respect of the
Uncertificated Lower-Tier Interests pursuant to Section 4.01(d), and shall
distribute to each Class of Class A-1, Class A-2, Class A-3, Class B, Class
C, Class D and Class E Certificates then outstanding an amount equal to the
product of (a) a fraction whose numerator is the amount distributed as
principal to such Class from the Available Distribution Amount pursuant to
Section 4.01(a) on such Distribution Date and whose denominator is the total
amount of principal distributed to all Classes of Certificates from the
Available Distribution Amount pursuant to Section 4.01(a) on such
Distribution Date, (b) 25% and (c) the total amount of such Prepayment
Premiums collected during the related Due Period. Any Prepayment Premiums
received during the related Due Period with respect to the Loans or REO Loans
remitted in respect of Uncertificated Lower-Tier Interests pursuant to
Section 4.01(d) and remaining after such distributions shall be distributed
on the Class A-X Certificates.
Following the reduction of the Certificate Balances of the Class A,
Class B, Class C, Class D and Class E Certificates to zero, the Trustee shall
distribute 100% of any Yield Maintenance Charges and Prepayment Premiums
actually received during the related Due Period with respect to the Loans and
remitted in respect of Uncertificated Lower-Tier Interests pursuant to
Section 4.01(d), to the Class A-X Certificates.
On each Distribution Date, the Servicer will deposit all Yield
Maintenance Charges in the Lower-Tier Distribution Account for payment to the
Uncertificated Lower-Tier Interests pro rata in proportion to their
respective principal balances. On each Distribution Date, until the
Certificate Balances of the Class A, Class B, Class C, Class D and Class E
Certificates have each been reduced to zero, the Trustee shall withdraw any
amounts on deposit in the Upper-Tier Distribution Account that represent
Yield Maintenance Charges actually collected on Loans or REO Loans during the
related Due Period and remitted in respect of Uncertificated Lower-Tier
Interests pursuant to Section 4.01(d), and shall distribute to each Class of
Class A, Class B, Class C, Class D and Class E Certificates an amount equal
to the product of (a) a fraction whose numerator is the amount distributed as
principal to such Class from the Available Distribution Amount pursuant to
Section 4.01(a) on such Distribution Date and whose denominator is the total
amount of principal distributed to all Classes of Certificates from the
Available Distribution Amount pursuant to Section 4.01(a) on such
Distribution Date, (b) the Base Interest Fraction for the related principal
prepayment and such Class of Certificates and (c) the aggregate amount of
such Yield Maintenance Charges collected on such principal prepayment during
the related Due Period. Any Yield Maintenance Charges received during the
related Due Period with respect to the Loans or REO Loans, remitted in
respect of the Uncertificated Lower-Tier Interests pursuant to Section
4.01(d) and remaining after such distributions shall be distributed on the
Class A-X Certificates.
(f) On any applicable Distribution Date, Excess Interest for such
Distribution Date shall be distributed to the Class V-1 Certificates.
(g) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding
Certificates in such Class based on their respective Percentage Interests.
Except as otherwise specifically provided in Sections 4.01(h), 4.01(i) and
9.01, all such distributions with respect to each Class on each Distribution
Date shall be made to the Certificateholders of the respective Class of
record at the close of business on the related Record Date and shall be made
by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with
written wiring instructions no less than five (5) Business Days prior to the
related Record Date (which wiring instructions may be in the form of a
standing order applicable to all subsequent Distribution Dates) and is the
registered owner of Certificates with an aggregate initial Certificate
Balance (or in the case of the Class A-X Certificates, a Notional Balance) of
at least $5,000,000, or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of Collateral Support Deficit previously allocated to
such Certificate) will be made in like manner, but only upon presentation and
surrender of such Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such
final distribution.
Each distribution with respect to a Book-Entry Certificate shall be paid
to the Depository, as Holder thereof, and the Depository shall be responsible
for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution
to the Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible
for disbursing funds to the Certificate Owners that it represents. None of
the Trustee, the Certificate Registrar, the Depositor, the Servicer, the
Special Servicer, the Underwriter or the Initial Purchaser shall have any
responsibility therefor except as otherwise provided by this Agreement or
applicable law.
(h) Except as otherwise provided in Section 9.01, whenever the Trustee
expects that the final distribution with respect to any Class of Certificates
(determined without regard to any possible future reimbursement of any amount
of Collateral Support Deficit previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Trustee shall,
no later than two Business Days following the related P&I Advance
Determination Date, mail to each Holder on such date of such Class of
Certificates a notice to the effect that no interest shall accrue on such
Certificates from and after such Distribution Date.
Any funds not distributed to any Holder or Holders of Definitive Certificates
of any Class on such Distribution Date because of the failure of such Holder
or Holders to tender their Certificates shall, on such date, be set aside and
held uninvested in trust and credited to the account or accounts of the
appropriate non-tendering Holder or Holders. If any Definitive Certificates
as to which notice has been given pursuant to this Section 4.01(h) shall not
have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Definitive Certificateholders to surrender their
Certificates for cancellation in order to receive the final distribution with
respect thereto. If within one year after the second notice all such
Definitive Certificates shall not have been surrendered for cancellation, the
Trustee, directly or through an agent, shall take such steps to contact the
remaining non-tendering Definitive Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such Definitive
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of
such funds. No interest shall accrue or be payable to any Definitive
Certificateholder on any amount held in trust hereunder by the Trustee as a
result of such Definitive Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with this
Section 4.01(h).
(i) Distributions in reimbursement of Collateral Support Deficit
previously allocated to the Regular Certificates shall be made in the amounts
and manner specified in Section 4.01(a) to the Holders of the respective
Class otherwise entitled to distributions of interest and principal on such
Class on the relevant Distribution Date; provided, however, that all
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distributions in reimbursement of Collateral Support Deficit previously
allocated to a Class of Certificates which has since been retired shall be
to the prior Holders that surrendered the Certificates of such Class upon
retirement thereof and shall be made by check mailed to the address of each
such prior Holder last shown in the Certificate Register. Notice of any
such distribution to a prior Holder shall be made in accordance with Section
10.05 at such last address. The amount of the distribution to each such
prior Holder shall be based upon the aggregate Percentage Interest evidenced
by the Certificates surrendered thereby. If the check mailed to any such
prior Holder is returned uncashed, then the amount thereof shall be set
aside and held uninvested in trust for the benefit of such prior Holder, and
the Trustee shall attempt to contact such prior Holder in the manner
contemplated by Section 4.01(h) as if such Holder had failed to surrender
its Certificates.
(j) Shortfalls in the Available Distribution Amount resulting from
Prepayment Interest Shortfalls not covered by compensation to the Servicer
pursuant to the last paragraph of Section 3.11(a) shall be allocated to each
Class of Regular Certificates, pro rata, based on the Accrued Certificate
Interest Amount distributable to each such Class. The amount by which the
servicing compensation is to be reduced in connection with Prepayment
Interest Shortfalls pursuant to the last paragraph of Section 3.11(a) shall
be deposited by the Servicer into the Certificate Account on or prior to the
Servicer Remittance Date.
Shortfalls in the Available Distribution Amount resulting from
unanticipated Trust Fund indemnification expenses incurred pursuant to
Section 6.03 and Section 8.05 shall be allocated to each Class of Regular
Certificates, pro rata, based on the Accrued Certificate Interest Amount
distributable to each such Class. Unanticipated indemnification expenses
which are applied to each Class of Certificates shall be allocated to the
Uncertificated Lower-Tier Interests corresponding to such Classes.
(k) On each Distribution Date on which the Holders of a Class or Classes
of Regular Certificates receive a distribution of Additional Collateral
Prepayment Amounts (which distribution shall be deemed made after application
of that portion of the Principal Distribution Amount other than such
Additional Collateral Prepayment Amounts), (i) the Regular Yield Protection
Payment Amount for such Distribution Date shall be distributed to such Class
or Classes pro rata in accordance with the portion of such Additional
Collateral Prepayment Amount that is allocated to each such Class and
(ii) the Class A-X Yield Protection Payment Amount for such Distribution Date
shall be distributed to the Holders of the Class A-X Certificates.
SECTION 4.02. Statements to Certificateholders; Reports by Trustee;
----------------------------------------------------
Other Information Available to the Holders and Others.
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(a) On each Distribution Date, based solely upon the information
regarding the Loans set forth in the Servicer Remittance Report prepared by
the Servicer and the other reports prepared by the Servicer and Special
Servicer relating to such Distribution Date, and only to the extent such
information is provided to the Trustee by the Servicer or Special Servicer,
the Trustee shall prepare and forward, by first class mail to each Holder of
a Certificate, with copies to the Depositor, the Servicer, the Special
Servicer, the Underwriter and each Rating Agency a written report (a
"Distribution Date Statement") setting forth the following information:
(i) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates applied to
reduce the respective Certificate Balance thereof;
(ii) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates allocable to
(A) such Class's Optimal Interest Distribution Amount and, separately stated,
the portion thereof representing the Unpaid Interest Shortfall Amount for
such Class, (B) Prepayment Premiums and (C) Yield Maintenance Charges;
(iii) separately stated, the aggregate amounts of Uncovered Prepayment
Interest Shortfalls, Certificate Deferred Interest and indemnification
expenses of the Trust Fund allocable to the Holders of each Class of
Certificates on such Distribution Date;
(iv) the aggregate Certificate Balance or aggregate Notional Balance,
as the case may be, of each Class of Regular Certificates, before and after
giving effect to the distributions made on such Distribution Date, separately
identifying any reduction in the aggregate Certificate Balance (or, in the
case of the Class A-X Certificates, the aggregate Notional Balance) of each
such Class due to any Collateral Support Deficit;
(v) the Pass-Through Rate for each Class of Certificates applicable to
such Distribution Date;
(vi) the number of outstanding Loans and the aggregate unpaid principal
balance of the Loans at the close of business on the related Distribution
Date;
(vii) the number and aggregate unpaid principal balance of Loans (A)
delinquent 30 to 59 days, (B) delinquent 60 to 89 days, (C) delinquent 90
days or more, (D) that are current but Specially Serviced Loans or (E) that
were in foreclosure but were not REO Loans;
(viii) with respect to any REO Loan as to which the related Mortgaged
Property became an REO Property during the preceding calendar month, the
city, state, property type, latest Debt Service Coverage Ratio, Stated
Principal Balance and the unpaid principal balance of such Loan as of the
date it became an REO Loan;
(ix) as to any Loan repurchased by the Mortgage Loan Seller or
otherwise liquidated or disposed of during the related Due Period, (A) the
Loan Number of the related Loan and (B) the amount of proceeds of any
repurchase of a Loan, Liquidation Proceeds and/or other amounts, if any,
received thereon during the related Due Period and the portion thereof
included in the related Available Distribution Amount for such Distribution
Date;
(x) with respect to any REO Property included in the Trust Fund at the
close of business on the related Due Date (A) the Loan Number of the related
Loan, (B) the value of such REO Property based on the most recent appraisal
or valuation, and (C) the aggregate amount of income and other revenues
collected by the Special Servicer with respect to such REO Property during
the related Due Period and the portion thereof included in the related
Available Distribution Amount for such Distribution Date;
(xi) with respect to any REO Property sold or otherwise disposed of
during the related Due Period and for which a Final Recovery Determination
has been made, (A) the Loan Number of the related Loan, (B) the amount of
sale proceeds and other amounts, if any, received in respect of such REO
Property during the related Due Period and the portion thereof included in
the related Available Distribution Amount for such Distribution Date and
(C) the date of the Final Recovery Determination;
(xii) the amount of Principal Prepayments (in the aggregate and broken
out on a loan-by-loan basis) made during the related Due Period, the amount
of any Yield Maintenance Charges, Prepayment Premiums and/or Yield Protection
Payments (in the aggregate and broken out on a loan-by-loan basis) paid
during the related Due Period and the aggregate amount of any Prepayment
Interest Shortfalls not covered by the Servicer for such Distribution Date;
(xiii) the amount of Servicing Advances and P&I Advances outstanding (net
of reimbursed Advances) which have been made by the Servicer, the Special
Servicer or the Trustee in the aggregate and by Mortgaged Property or Loan,
as the case may be;
(xiv) the aggregate amount of Servicing Fees, Special Servicing Fees and
other servicing compensation retained by or paid to the Servicer and the
Special Servicer during the related Due Period;
(xv) the amount of any Appraisal Reduction Amounts allocated during the
related Due Period on a loan-by-loan basis; the total Appraisal Reduction
Amounts allocated during the related Due Period; and the total Appraisal
Reduction Amounts as of such Distribution Date on a loan-by-loan basis;
(xvi) the Collateral Support Deficit, if any for such Distribution Date;
(xvii) the Pass-Through Rate for each Class of Certificates applicable
for such Distribution Date; and
(xviii) Trust Fund expenses incurred during the related Due Period.
In the case of information furnished pursuant to subclauses (i), (ii)
and (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per $1,000 of
original Certificate Balance or Notional Balance, as the case may be.
On each Distribution Date, the Trustee shall forward to each Holder of a
Class R or Class LR Certificate a copy of the reports forwarded to the other
Certificateholders on such Distribution Date and a statement setting forth
the amounts, if any, actually distributed with respect to the Class R or
Class LR Certificates on such Distribution Date. Such obligation of the
Trustee shall be deemed to have been satisfied to the extent that it provided
substantially comparable information pursuant to any requirements of the Code
as from time to time in force.
Within a reasonable period of time after the end of each calendar year,
the Trustee shall send to each Person who at any time during the calendar
year was a Certificateholder of record, a report summarizing on an annual
basis (if appropriate) the items provided to Certificateholders pursuant to
Section 4.02(a)(ii) above and such other information as may be required to
enable such Certificateholders to prepare their federal income tax returns.
Such information shall include the amount of original issue discount accrued
on each Class of Certificates held by Persons other than Holders exempted
from the reporting requirements and information regarding the expenses of the
Trust. Such requirement shall be deemed to be satisfied to the extent such
information is provided pursuant to applicable requirements of the Code from
time to time in force.
(b) On each Distribution Date, the Trustee shall deliver or cause to be
delivered by first class mail to each Certificateholder, each prospective
investor in a Certificate (upon written request and certification by a
Certificate Owner), the Depositor, the Servicer, the Special Servicer, the
Underwriter, and each Rating Agency a report containing information regarding
the Loans as of the end of the related Due Period (after giving effect to
Principal Prepayments and other collections of principal required to be
distributed on such Distribution Date), which report shall contain
substantially the categories of information regarding the Loans set forth in
the Prospectus Supplement under the caption "Description of the
Loans--Certain Terms and Conditions of the Mortgage Loans" (reported, where
applicable, solely on the basis of the most recent relevant information
provided by the Borrowers to the Servicer or the Special Servicer, as the
case may be, and by the Servicer or the Special Servicer, as the case may be,
to the Trustee), which shall also include a loan-by-loan listing (in
descending balance order) showing loan name, property type, location, unpaid
principal balance, Mortgage Rate, paid through date, maturity date, net
interest portion of the Monthly Payment, principal portion of the Monthly
Payment and any Prepayment Premium. Such reports shall be made available
electronically in accordance with the provisions of Section 4.02(d);
provided, however, that the Trustee shall provide Certificate Owners with a
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written copy of such report upon written request. If any event or
occurrence required action on the part of the Special Servicer pursuant to
Section 3.25 during the related Due Period, the Servicer shall include the
related Construction Loan on the Servicer's Watch List and shall make copies
of the related Construction Loan Status Report available to the Rating
Agencies and Certificateholders as provided herein.
(c) On each Distribution Date, the Trustee shall deliver or shall cause
to be delivered by first class mail to each Certificateholder, each
prospective investor in a Certificate (upon written request and certification
by a Certificate Owner), the Depositor, the Underwriter and each Rating
Agency a copy of the Comparative Financial Status Report, the Delinquent Loan
Status Report, the Historical Loss Estimate Report, the Historical Loan
Modification Report, the REO Status Report and a Servicer Watch List provided
by the Servicer to the Trustee pursuant to Section 3.12 on the Servicer
Remittance Date. The information that pertains to Specially Serviced Loans
and REO Properties reflected in such reports shall be based solely upon the
reports delivered by the Special Servicer to the Servicer at least two
Business Days prior to the related Servicer Remittance Date. Absent manifest
error, (i) none of the Servicer, the Special Servicer or the Trustee shall be
responsible for the accuracy or completeness of any information supplied to
it by a Borrower or third party that is included in any reports, statements,
materials or information prepared or provided by the Servicer, the Special
Servicer or the Trustee, as applicable, (ii) the Trustee shall not be
responsible for the accuracy or completeness of any information supplied to
it by the Servicer or Special Servicer that is included in any reports,
statements, materials or information prepared or provided by the Servicer or
Special Servicer, as applicable, and (iii) the Trustee shall be entitled to
conclusively rely upon the Servicer's reports and the Special Servicer's
reports without any duty or obligation to recompute, verify or re-evaluate
any of the amounts or other information stated therein.
The Trustee shall deliver a copy of each Operating Statement Analysis
report that it receives from the Servicer and Special Servicer to the
Depositor, the Underwriter and each Rating Agency promptly after its receipt
thereof. Upon written request therefor, the Trustee shall make such reports
available to the Certificateholders and the Special Servicer.
(d) The Trustee shall make available at its offices, during normal
business hours, upon not less than two Business Days' prior written notice,
for review by any Certificateholder, any prospective investor in a
Certificate, the Depositor, the Servicer, the Special Servicer, any Rating
Agency, and any other Person to whom the Depositor believes such disclosure
is appropriate, originals or copies of documents relating to the Loans and
any related REO Properties to the extent in its possession, including,
without limitation, the following items (except to the extent prohibited by
applicable law or by the terms of any of the Mortgage Documents): (i) this
Agreement and any amendments thereto; (ii) all Distribution Date Statements
delivered to the Certificateholders since the Closing Date; (iii) all annual
Officers' Certificates and all accountants' reports delivered by the Servicer
or Special Servicer to the Trustee since the Closing Date regarding
compliance with the relevant agreements; (iv) the most recent property
inspection report prepared by or on behalf of the Servicer or the Special
Servicer in respect of each Mortgaged Property; (v) the most recent annual
(or more frequent, if available) operating statements, rent rolls (to the
extent such rent rolls have been made available by the related Borrower)
and/or lease summaries and retail sales information, if any, collected by or
on behalf of the Servicer or the Special Servicer in respect to each
Mortgaged Property; (vi) any and all modifications, waivers and amendments of
the terms of a Loan entered into by the Servicer and/or the Special Servicer;
(vii) any and all Officers' Certificates and other evidence delivered to or
by the Trustee to support the Servicer's or the Trustee's, as the case may
be, determination that any Advance, if made, would be a Nonrecoverable
Advance; and (viii) any other materials not otherwise required to be provided
hereunder provided to a requesting Certificateholder as provided in this
Agreement in situations where such requesting Certificateholder declined to
enter into a confidentiality agreement with the Servicer. The Servicer shall
cooperate with the Trustee to make any of the above-mentioned items available
to any Certificateholder upon its request and payment by it of reasonable
costs. Copies of any and all of the foregoing items will be available from
the Trustee upon written request therefor. The Trustee will be permitted to
require payment by the requesting party (other than a Rating Agency) of a sum
sufficient to cover the reasonable costs and expenses of making such
information available and providing any copies thereof. The Trustee's
obligation under this Section 4.02(d) to make available any document is
subject to the Trustee's receipt of such document.
The Trustee shall make available each month, to any interested party,
the Distribution Date Statement and any other reports referred to in Section
4.02(c) hereof via the Trustee's electronic bulletin board, Internet Website
and/or, with respect to Distribution Date Statements only, its fax-on-demand
service. In addition, the Trustee shall also make Loan information as
presented in the CSSA loan setup file and CSSA loan periodic update file
format available each month, to any Certificateholder, Certificate Owner, the
Rating Agencies, the parties hereto or any other interested party via the
Trustee's Internet Website and electronic bulletin board. The Servicer shall
make the Comparative Financial Status Reports, Delinquent Loan Status
Reports, Historical Loan Modification Reports, Historical Loss Estimate
Reports, REO Status Reports, Servicer Watch Lists and Operating Statement
Analyses available via its Internet Website no later than the Business Day
following each Distribution Date. The Trustee and the Servicer shall each
provide a link on their respective Internet Websites to the other's Website.
The Servicer shall not exhibit non-approved information or forms on its
Internet Website without the prior written consent of the Depositor.
The Trustee shall be obligated to deliver the statements, reports and
information contemplated by Section 4.02 only to the extent it receives the
necessary underlying information from the Servicer or the Special Servicer
and shall not be liable for any failure to deliver any thereof on the
prescribed due dates, to the extent caused by failure to receive timely such
underlying information. Nothing herein shall obligate the Trustee, the
Servicer or the Special Servicer to violate any applicable law prohibiting
disclosure of information with respect to any Borrower and the failure of the
Trustee, the Servicer or the Special Servicer to disseminate information for
such reason shall not be a breach hereof.
In addition, the Trustee shall make available, as a convenience for
interested parties (and not in furtherance of the distribution of the
Prospectus or the Prospectus Supplement under the securities laws), the
Pooling and Servicing Agreement, the Prospectus and the Prospectus Supplement
via the Trustee's Internet Website and electronic bulletin board. The Trustee
makes no representations or warranties as to the accuracy or completeness of
such documents and, subject to Article VIII hereof, will assume no
responsibility therefor.
In connection with providing access to the Trustee's and/or the
Servicer's Internet Website or electronic bulletin board, the Trustee or the
Servicer, as the case may be, may require registration and the acceptance of
a disclaimer. Neither the Servicer nor the Trustee shall be liable for the
dissemination of information in accordance with this Agreement.
SECTION 4.03. P&I Advances; Yield Protection Payment Advances.
-----------------------------------------------
(a) On or before 1:00 p.m. New York City time on each P&I Advance Date,
the Servicer shall (i) deposit into the Distribution Accounts from its own
funds an amount equal to the aggregate amount of P&I Advances, if any, to be
made in respect of the related Distribution Date, (ii) apply amounts held in
the Certificate Account that are not required to be part of either Available
Distribution Amounts for such Distribution Date or (iii) make P&I Advances in
the form of any combination of (i) and (ii) aggregating the total amount of
P&I Advances to be made. Any amounts held in the Certificate Account not
required to be a part of the Available Distribution Amount for such
Distribution Date and so used to make P&I Advances shall be appropriately
reflected in the Servicer's records and replaced by the Servicer by deposit
in the Certificate Account on or before the next succeeding P&I Advance
Determination Date (to the extent not previously replaced through the deposit
of Late Collections of the delinquent principal and/or interest in respect of
which such P&I Advances were made). The Servicer shall notify the Trustee by
a certificate of the Servicing Officer of (i) the aggregate amount of P&I
Advances for a Distribution Date and (ii) the amount of any Nonrecoverable
P&I Advances for such Distribution Date, on or before three (3) Business Days
prior to such Distribution Date.
(b) Subject to Section 4.03(c) and (e) below, the aggregate amount of
P&I Advances to be made by the Servicer with respect to any Distribution Date
shall equal the aggregate of: (i) all Monthly Payments (in each case, net of
related Primary Servicing Fees and Servicing Fees), other than Balloon
Payments, that were due during any related Due Period and delinquent as of
the close of business on the Business Day preceding the related P&I Advance
Date (or not advanced by any Sub-Servicer on behalf of the Servicer) and
(ii) with respect to each Loan as to which the related Balloon Payment was
due during or prior to the related Due Period and was delinquent as of the
end of the related Due Period (including any REO Loan as to which the Balloon
Payment would have been past due), an amount equal to the Assumed Scheduled
Payment therefor. Subject to subsection (c) below, the obligation of the
Servicer to make such P&I Advances is mandatory and, with respect to any Loan
or REO Loan, shall continue until the Distribution Date on which the
proceeds, if any, received in connection with a Liquidation Event with
respect thereto are to be distributed.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. On the fourth Business Day before
each Distribution Date, the Special Servicer shall report to the Servicer the
Special Servicer's determination as to whether each P&I Advance made with
respect to any previous Distribution Date or required to be made with respect
to such Distribution Date with respect to any Specially Serviced Loan or REO
Loan is a Nonrecoverable P&I Advance. The Servicer shall be entitled to
conclusively rely on such determination.
(d) Subject to the second following sentence, in connection with the
recovery of any P&I Advance out of the Certificate Account pursuant to
Section 3.05(a), the Servicer shall be entitled to pay itself or the Trustee,
as the case may be, out of any amounts then on deposit in the Certificate
Account, interest at the Reimbursement Rate in effect from time to time,
accrued on the amount of such P&I Advance from the date made to but not
including the date of reimbursement. The Servicer shall reimburse itself or
the Trustee, as the case may be, for any outstanding P&I Advance as soon as
practicably possible after funds available for such purpose are deposited in
the Certificate Account. Subject to Section 4.03(c), the Servicer shall make
a P&I Advance with respect to Loan No. 112 for any month in which such Loan's
grace period is still in effect on the related Servicer Remittance Date (if
the related Monthly Payment is unpaid on such date) and shall not charge
interest on the amount of such P&I Advance until after such grace period has
ended or unless an unreimbursed P&I Advance remains outstanding with respect
to such Loan.
(e) Notwithstanding the foregoing, (i) neither the Servicer nor the
Trustee shall be required or permitted to make an advance for Penalty
Charges, Prepayment Premiums, Yield Maintenance Charges, Balloon Payments or
Excess Interest, (ii) the amount required to be advanced in respect of
delinquent Monthly Payments and Assumed Scheduled Payments on any Loan that
has been subject to an Appraisal Reduction will equal, with respect to any
Distribution Date, the amount that would be required to be advanced by the
Servicer without giving effect to the Appraisal Reduction less the Appraisal
Reduction Amount for such Distribution Date, and (iii) if the monthly payment
on any Loan has been reduced in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section
3.20, or if the final maturity on any Loan shall be extended in connection
with a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment granted or agreed to by the Special
Servicer pursuant to Section 3.20, and the monthly payment due and owing
during the extension period is less than the related Assumed Scheduled
Payment, then the Servicer shall, as to such Loan only, advance only the
amount of the Monthly Payment due and owing after taking into account such
reduction (net of related Primary Servicing Fees and Servicing Fees), in the
event of subsequent delinquencies thereon.
(f) Upon receipt of notice of a Credit Lease Enhancement Policy
Termination Event, the Servicer shall:
(i) Maintain a record of all payments by the related Credit Lease
Enhancement Policy Issuer (the aggregate amount already paid at such
time, together with all subsequent payments made from time to time
thereafter, under the Credit Lease Enhancement Policy, the "Credit Lease
Enhancement Policy Exposure");
(ii) Make no P&I Advance with respect to the related Loan to the
extent that such P&I Advance, taking into account any Credit Lease
Enhancement Policy Exposure, would constitute a Nonrecoverable P&I
Advance;
(iii) Upon determination that any P&I Advance (or portion thereof)
or payment by the Credit Lease Enhancement Policy Issuer (or portion
thereof), taking into account the Credit Lease Enhancement Policy
Exposure, with respect to such Loan would be a Nonrecoverable Advance,
deposit into an account (the "Enhancement Policy Escrow Account")
established and maintained by the Servicer as an Eligible Account all
payments made under the related Credit Lease Enhancement Policy after
the date of such determination until the date on which ultimate
responsibility (as between the Trust Fund and the Credit Lease
Enhancement Policy Issuer) for payments with respect to such Credit
Lease Enhancement Policy Termination Event is finally resolved. Amounts
deposited in the Enhancement Policy Escrow Account shall be invested in
Permitted Investments selected by the Servicer pursuant to Section 3.06;
(iv) In the event any payment (or portion thereof) made by such
Credit Lease Enhancement Policy Issuer is subsequently determined, in
accordance with the dispute resolution procedures set forth in the
related Credit Lease Enhancement Policy or pursuant to any legal process
or settlement by the Special Servicer of any claim by such Credit Lease
Enhancement Policy Issuer, to be reimbursable to such issuer, (a) remit
to such issuer the amount on deposit in the Enhancement Policy Escrow
Account (up to the amount owed to the issuer), (b) make a P&I Advance of
any remaining amount owed to the issuer and (c) promptly pay the amount
of such P&I Advance to such issuer under the Credit Lease Enhancement
Policy with respect to such Credit Lease Enhancement Policy Termination
Event. If such P&I Advance is determined to be a Nonrecoverable P&I
Advance, the Servicer shall nevertheless make such P&I Advance to the
related Credit Lease Enhancement Policy Issuer to reimburse it for
amounts paid out under the Credit Lease Enhancement Policy as provided
above, but the Servicer shall be entitled to immediately reimburse
itself from general funds available in the Certificate Account for such
P&I Advance as a Trust Fund expense. If such P&I Advance is not
determined to be a Nonrecoverable P&I Advance, the Servicer shall be
repaid therefor out of the proceeds of the related Loan.
(v) In the event any payment (or portion thereof) made by such
Credit Lease Enhancement Policy Issuer and deposited into the
Enhancement Policy Escrow Account is subsequently determined to have
been properly payable to the Trust Fund, then the Servicer shall deposit
into the Certificate Account the amount on deposit in the Enhancement
Policy Escrow Account (net of any interest and investment income
realized on funds on deposit therein that, pursuant to Section 3.06(a),
is to be applied to pay interest on Advances made with respect to, or
other expenses of the Trust Fund allocable to, the related Loan),
together with any payments in the nature of damages relating to non-
payment under such Credit Lease Enhancement Policy, as recoveries with
respect to such Loan.
(g) With respect to each Due Period, if any, in which Additional
Collateral Prepayment Amounts are paid pursuant to the terms of one or more
Additional Collateral Loans, the Servicer shall make an advance to the Yield
Protection Payment Account on the related Servicer Remittance Date in an
amount equal to the Yield Protection Payment, if any, for the related
Distribution Date (such advance, a "Yield Protection Payment Advance"). The
Servicer's obligation to make Yield Protection Payment Advances shall be in
consideration for, and conditioned upon, the Mortgage Loan Seller's agreement
to reimburse the Servicer therefor pursuant to an agreement between the
Servicer and the Mortgage Loan Seller. In no event shall the Servicer be
entitled to reimbursement from the Trust Fund for any Yield Protection
Payment Advance.
SECTION 4.04. Allocation of Collateral Support Deficit.
----------------------------------------
(a) On each Distribution Date, immediately following the distributions
to be made on such date pursuant to Section 4.01 and the allocation of
Certificate Deferred Interest pursuant to Section 4.06, the Trustee shall
calculate the amount, if any, by which (i) the aggregate Stated Principal
Balance of the Loans and any REO Loans expected to be outstanding immediately
following such Distribution Date is less than (ii) the then aggregate
Certificate Balance of the Regular Certificates after giving effect to
distributions of principal on such Distribution Date and the allocation of
Certificate Deferred Interest pursuant to Section 4.06 (any such deficit, the
"Collateral Support Deficit"). Any allocation of Collateral Support Deficit
to a Class of Regular Certificates shall be made by reducing the Certificate
Balance thereof by the amount so allocated. Any Collateral Support Deficit
allocated to a Class of Regular Certificates shall be allocated among the
respective Certificates of such Class in proportion to the Percentage
Interests evidenced thereby. The allocation of Collateral Support Deficit
shall constitute an allocation of losses and other shortfalls experienced by
the Trust Fund. Reimbursement of previously allocated Collateral Support
Deficit will not constitute distributions of principal for any purpose and
will not result in an additional reduction in the Certificate Balance of the
Class of Certificates in respect of which any such reimbursement is made.
(b) On each Distribution Date, the Certificate Balances of the Regular
Certificates will be reduced without distribution as a write-off to the
extent of any Collateral Support Deficit, if any, allocable to such
Certificates with respect to such Distribution Date. Any such write-off
shall be allocated among the respective Certificates as follows: first, to
the Class J Certificates; second, to the Class I Certificates; third, to the
Class H Certificates; fourth, to the Class G Certificates; fifth, to the
Class F Certificates; sixth, to the Class E Certificates; seventh, to the
Class D Certificates, eighth, to the Class C Certificates, ninth, to the
Class B Certificates, tenth, to the Class A Certificates, in each case, until
the remaining Certificate Balance of each such Class of Certificates has been
reduced to zero. Following the reduction of the Certificate Balances of all
such Classes to zero, any remaining Collateral Support Deficit shall be
allocated among the Class A-1, Class A-2 and Class A-3 Certificates, pro rata
(based upon such Classes' respective Certificate Balances), until the
remaining Certificate Balances of such Classes have been reduced to zero. Any
Collateral Support Deficit allocated to a Class of Certificates will be
allocated among respective Certificates of such Class in proportion to the
Percentage Interests evidenced thereby.
(c) With respect to any Distribution Date, any Collateral Support
Deficit allocated to a Class of Certificates pursuant to Section 4.04(b) with
respect to such Distribution Date shall reduce the Lower-Tier Principal
Amounts of the Related Uncertificated Lower-Tier Interest with respect
thereto as a write-off.
SECTION 4.05. Appraisal Reductions.
--------------------
The aggregate Appraisal Reductions will be allocated by the Trustee on
each Distribution Date to the Certificate Balance of the Class J, Class I,
Class H, Class G, Class F, Class E, Class D, Class C and Class B
Certificates, in that order, up to the amount of their respective Certificate
Balances, for purposes of determining (x) the amount of P&I Advances with
respect to the related Loans, (y) Voting Rights and (z) the identity of the
Controlling Class. On any Distribution Date, an Appraisal Reduction that
otherwise would be allocated to a Class of Certificates will be allocated to
the next most subordinate Class to the extent that the Certificate Balance on
such Distribution Date for such Class of Certificates (prior to taking the
Appraisal Reduction into account) is less than the Appraisal Reduction for
such Distribution Date.
On the third Business Day by 4:00 p.m. New York City time immediately
preceding each Distribution Date with respect to which one or more Appraisal
Reductions exist, the Servicer shall notify the Trustee in writing of such
Appraisal Reductions and by the close of business of the second Business Day
immediately preceding each such Distribution Date, the Trustee shall identify
to the Servicer in writing each Class of Subordinate Certificates to which
one or more Appraisal Reductions will be allocated on such Distribution Date,
the applicable Pass-Through Rate of each such Class, and the amount of
Appraisal Reductions allocated to each such Class.
SECTION 4.06. Certificate Deferred Interest.
-----------------------------
(a) On each Distribution Date, the Monthly Interest Distributable Amount
for the Regular Certificates (other than the Class A-X Certificates) shall be
reduced by an amount of Certificate Deferred Interest equal to the aggregate
amount of Mortgage Deferred Interest for all Loans for the related Due Date
allocated to such Class of Certificates, the amount representing such
Certificate Deferred Interest to be allocated first, to the Class J
Certificates, second, to the Class I Certificates, third, to the Class H
Certificates, fourth, to the Class G Certificates, fifth, to the Class F
Certificates, sixth, to the Class E Certificates, seventh, to the Class D
Certificates, eighth, to the Class C Certificates, and ninth, to the Class B
Certificates. If the Certificate Balance of at least one Class of Class A
Certificates is not zero, then any amounts representing Certificate Deferred
Interest after allocation thereof to the Subordinate Certificates in
accordance with the preceding sentence will be allocated to the Class A
Certificates pro rata on the basis of such Classes' respective interest
entitlements on such date (before giving effect to any reduction therefrom on
such Distribution Date).
(b) On each Distribution Date, the Certificate Balances of the Class A-
1, Class A-2, Class A-3, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class I and Class J Certificates shall be increased (except
for the purposes of determining Voting Rights or the identity of the
Controlling Class) by the amount of the Certificate Deferred Interest
allocated to such Class of Certificates on such Distribution Date pursuant to
Section 4.06(a) above.
(c) With respect to any Distribution Date, any Certificate Deferred
Interest with respect to such Distribution Date allocated pursuant to
Section 4.06(a) to a Class of Certificates shall be allocated in reduction of
the amount of interest distributable to the Related Uncertificated Lower-Tier
Interest with respect thereto. On each Distribution Date, to the extent
provided in Section 4.06(b), Certificate Deferred Interest will be added to
the Lower-Tier Principal Amount of the Uncertificated Lower-Tier Interests in
the same manner as the interest thereon was reduced pursuant to the preceding
sentence.
SECTION 4.07. Grantor Trust Reporting.
-----------------------
The parties intend that the portions of the Trust Fund consisting of
Excess Interest, the Excess Interest Distribution Account, Yield Protection
Payments and the Yield Protection Payment Account shall constitute, and that
the affairs of the Trust Fund (exclusive of the Upper-Tier REMIC and the
Lower-Tier REMIC) shall be conducted so as to qualify such portions as a
"grantor trust" under the Code, and the provisions hereof shall be
interpreted consistently with this intention. In furtherance of such
intention, the Trustee (i) shall furnish or cause to be furnished to Class
V-1 Certificateholders, and shall file or cause to be filed with the Internal
Revenue Service together with Form 1041 or such other form as may be
applicable, information returns with respect to income relating to their
applicable share of Excess Interest in the case of the Class V-1 Certificates
at the time or times and in the manner required by the Code and (ii) shall
furnish or cause to be furnished to the Class A-X Certificateholders and to
the Holders of any Class of Regular Certificates receiving a Regular Yield
Protection Payment Amount, and shall file or cause to be filed with the
Internal Revenue Service together with Form 1041 or such other form as may be
applicable, information returns with respect to income relating to their
applicable share of Yield Protection Payments at the time or times and in the
manner required by the Code.
(End of Article IV)
ARTICLE V
THE CERTIFICATES
----------------
SECTION 5.01. The Certificates.
----------------
(a) The Certificates will be substantially in the respective forms
annexed hereto as Exhibits A-1 through and including A-12. The Certificates
will be issuable in registered form only; provided, however, that in
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accordance with Section 5.03 beneficial ownership interests in the Regular
Certificates (except, initially, the Class H, Class I and Class J
Certificates) shall initially be held and transferred through the book-entry
facilities of the Depository. The Class R and Class LR Certificates will
each be issuable in one or more registered, definitive physical certificates
(each, a "Definitive Certificate") substantially in the form of Certificates
of each Class and with such applicable legends as are set forth in the
Exhibits hereto corresponding to such Class. The Class H, Class I and
Class J Certificates shall initially be issued as Definitive Certificates
and, upon the direction of more than 50% of the Percentage Interests in any
such Class, the Depositor and the Trustee shall make such arrangements with
the Depository as are necessary and appropriate to cause such Class to be
held and transferred through the book-entry facilities of the Depository.
Each Certificate will share ratably in all rights of the related Class.
The Class A-X Certificates will be issuable only in Denominations of
authorized initial Notional Balance of not less than $100,000 and integral
multiples of $10,000 in excess thereof. If the initial Notional Amount does
not equal an integral multiple of $10,000, then a single additional Class A-X
Certificate may be issued in a Denomination of not less than $100,000 that
includes the excess of (i) such initial Notional Amount over (ii) the largest
integral multiple of $10,000 that does not exceed such Certificate Balance.
The Regular Certificates (other than the Class A-X Certificates) will be
issuable only in Denominations of authorized initial Certificate Balance of
not less than $10,000, and integral multiples of $1,000 in excess thereof;
provided, however, that (i) if the Certificate Balance of any Class of
- -------- -------
Regular Certificates (other than the Class A-X, Class H, Class I and Class J
Certificates) does not equal an integral multiple of $1,000, then a single
additional certificate of such Class may be issued in a Denomination of not
less than $10,000 that includes the excess of (a) such initial Certificate
Balance over (b) the largest integral multiple of $1,000 that does not
exceed such Certificate Balance and (ii) the Denominations of the Class H,
Class I and Class J Certificates need not be in integral multiples of
$1,000. The Class V-1 and Class R Certificates will be issuable only in
one or more Definitive Certificates in denominations representing Percentage
Interests of not less than 20%. The Class LR Certificates will be issuable
only in one Definitive Certificate in a denomination representing a
Percentage Interest of 100%.
With respect to any Certificate or any beneficial interest in a
Certificate, the "Denomination" thereof shall be (i) the amount (a) set forth
on the face thereof or, (b) set forth on a schedule attached thereto or (c)
in the case of any beneficial interest in a Book-Entry Certificate, the
interest of the related Certificate Owner in the applicable Class of
Certificates as reflected on the books and records of the Depository or
related Depository Participants, as applicable, (ii) expressed in terms of
initial Certificate Balance or initial Notional Balance, as applicable, and
(iii) be in an authorized denomination, as set forth above. The Book-Entry
Certificates will be issued as one or more certificates registered in the
name of a nominee designated by the Depository, and Certificate Owners will
hold interests in the Book-Entry Certificates through the book-entry
facilities of the Depository in the minimum Denominations and aggregate
Denominations as set forth in the above.
No Certificate Owner of a Book-Entry Certificate of any Class thereof
will be entitled to receive a Definitive Certificate representing its
interest in such Class, except as provided in Section 5.03 herein. Unless
and until Definitive Certificates are issued in respect of a Class of Book-
Entry Certificates, beneficial ownership interests in such Class of
Certificates will be maintained and transferred on the book-entry records of
the Depository and Depository Participants, and all references to actions by
Holders of such Class of Certificates will refer to action taken by the
Depository upon instructions received from the related registered Holders of
Certificates through the Depository Participants in accordance with the
Depository's procedures and, except as otherwise set forth herein, all
references herein to payments, notices, reports and statements to Holders of
such Class of Certificates will refer to payments, notices, reports and
statements to the Depository or its nominee as the registered Holder thereof,
for distribution to the related registered Holders of Certificates through
the Depository Participants in accordance with the Depository's procedures.
(b) The Certificates shall be executed by manual or facsimile signature
on behalf of the Certificate Registrar by an authorized officer.
Certificates bearing the manual or facsimile signatures of individuals who
were at any time the authorized officers of the Certificate Registrar shall
be entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates.
No Certificate shall be entitled to any benefit under this Agreement, or be
valid for any purpose, however, unless there appears on such Certificate a
certificate of authentication substantially in the form provided for herein
executed by the Authenticating Agent by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication. Norwest Bank Minnesota, National Association,
Norwest Center, Sixth and Marquette, Minneapolis, Minnesota 55479-0113, is
hereby initially appointed Authenticating Agent with power to act on the
Trustee's behalf in the authentication and delivery of the Certificates in
connection with transfers and exchanges as herein provided. If the
Authenticating Agent resigns or is terminated, the Trustee shall appoint a
successor Authenticating Agent which may be the Trustee or an Affiliate
thereof.
(c) Any of the Certificates may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or
with rules or regulations pursuant thereto, or with the rules of any
securities market in which the Certificates are admitted to trading, or to
conform to general usage.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
-----------------------------------------------------
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register
in which, subject to such reasonable regulations as the Certificate Registrar
may prescribe, the Certificate Registrar shall provide for the registration
of Certificates and of transfers and exchanges of Certificates as herein
provided. Norwest Bank Minnesota, National Association, Norwest Center,
Sixth and Marquette, Minneapolis, Minnesota 55479-0113, is hereby initially
appointed Certificate Registrar for the purpose of registering Certificates
and transfers and exchanges of Certificates as herein provided. The
Certificate Registrar may appoint, by a written instrument delivered to the
Depositor, the Trustee, the Special Servicer and the Servicer, any other bank
or trust company to act as Certificate Registrar under such conditions as the
predecessor Certificate Registrar may prescribe, provided that the
predecessor Certificate Registrar shall not be relieved of any of its duties
or responsibilities hereunder by reason of such appointment.
If the Servicer resigns or is removed in accordance with the terms
hereof, and Norwest Bank Minnesota, National Association resigns as
Certificate Registrar, the Trustee shall immediately succeed to its
predecessor's duties as Certificate Registrar. The Depositor, the Trustee,
the Servicer and the Special Servicer shall have the right to inspect the
Certificate Register or to obtain a copy thereof at all reasonable times, and
to rely conclusively upon a certificate of the Certificate Registrar as to
the information set forth in the Certificate Register. The names and
addresses of all Certificateholders and the names and addresses of the
transferees of any Certificates shall be registered in the Certificate
Register; provided, however, in no event shall the Certificate Registrar be
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required to maintain in the Certificate Register the names of Certificate
Owners.
The Person in whose name any Certificate is so registered shall be
deemed and treated as the sole owner and Holder thereof for all purposes of
this Agreement and the Certificate Registrar, the Servicer, the Trustee, the
Special Servicer and any agent of any of them shall not be affected by any
notice or knowledge to the contrary. A Definitive Certificate is
transferable or exchangeable only upon the surrender of such Certificate to
the Certificate Registrar at its office maintained at Norwest Center, Sixth
and Marquette, Minneapolis, Minnesota 55479-0113, or at the Corporate Trust
Office, if the Trustee is the Certificate Registrar (the "Registrar Office")
together with an assignment and transfer (executed by the Holder or his duly
authorized attorney).
Subject to the requirements of Sections 5.02(b), (c) and (d), the
Certificate Registrar shall execute and the Authenticating Agent shall duly
authenticate in the name of the designated transferee or transferees, one or
more new Certificates in Denominations of a like aggregate Denomination as
the Definitive Certificate being surrendered. Such Certificates shall be
delivered by the Certificate Registrar in accordance with Section 5.02(e).
Each Certificate surrendered for registration of transfer shall be canceled,
and the Certificate Registrar shall hold such canceled Certificates in
accordance with its standard procedures.
(b) No transfer of any Non-Registered Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under
the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction which does not
require such registration or qualification. If a transfer (other than one by
the Depositor to an Affiliate thereof) of a Non-Registered Certificate is to
be made in reliance upon an exemption from the Securities Act, and under the
applicable state securities laws, then either: (i) the Certificate Registrar
shall require that the transferee deliver to the Certificate Registrar an
investment representation letter (the "Investment Representation Letter"),
substantially in the form of Exhibit C attached hereto, which Investment
Representation Letter shall certify, among other things, that the transferee
is a "qualified institutional buyer" as defined in Rule 144A under the
Securities Act (a "Qualified Institutional Buyer"), and the Certificate
Registrar may also require that the transferee deliver to the Certificate
Registrar an Opinion of Counsel if such transferee is not a Qualified
Institutional Buyer or (ii) if the certifications described in the preceding
clause (i) cannot be provided, (a) the Certificate Registrar shall require an
Opinion of Counsel reasonably satisfactory to the Certificate Registrar and
the Depositor that such transfer may be made pursuant to an exemption,
describing the applicable exemption and the basis therefor, from registration
or qualification under the Securities Act, applicable state securities laws
and other relevant laws, which Opinion of Counsel shall not be an expense of
the Trust Fund, the Certificate Registrar, the Depositor or the Trustee and
(b) the Certificate Registrar shall require the transferor (other than the
Underwriter, in connection with its initial transfer of the Certificate being
transferred) to execute a certification in form and substance satisfactory to
the Certificate Registrar setting forth the facts surrounding such transfer;
provided, however, that a transfer of a Non-Registered Certificate of any such
- -------- -------
Class may be made to a trust if the transferor provides to the Certificate
Registrar and to the Trustee a certification that interests in such trust
may only be transferred subject to requirements substantially to the effect
set forth in this Section 5.02.
The Servicer will furnish, or cause to be furnished, upon the request of
any Holder of Non-Registered Certificates, to a prospective purchaser of such
Non-Registered Certificates who is a Qualified Institutional Buyer, all
Distribution Date Statements, servicing reports and any such information as
is specified in paragraph (d)(4) of Rule 144A with respect to the Trust Fund,
unless, at the time of such request, the entity with respect to which such
information is to be provided is subject to the reporting requirements of
Section 15(d) of the Exchange Act. None of the Depositor, the Trustee, the
Servicer or the Certificate Registrar is obligated to register or qualify any
Class of Non-Registered Certificates under the Securities Act or any other
securities law or to take any action not otherwise required under this
Agreement to permit the transfer of any Non-Registered Certificate without
registration or qualification. Any Holder of a Non-Registered Certificate
desiring to effect such a transfer shall, and does hereby agree to, indemnify
the Depositor, the Trustee, the Servicer and the Certificate Registrar
against any liability that may result if the transfer is not so exempt or is
not made in accordance with such federal and state laws. Unless the
Certificate Registrar determines otherwise in accordance with applicable law
and the rules and procedures of, or applicable to, the Depository (the
"Depository Rules"), transfers of a beneficial interest in a Book-Entry
Certificate representing an interest in a Non-Registered Certificate that is
not rated in one of the top four categories by a nationally recognized
statistical rating organization to a Qualified Institutional Buyer may be
effectuated only by means of an "SRO Rule 144A System" approved for such
purpose by the Commission.
Unless the Non-Registered Certificates have been registered under the
Securities Act, each of the Non-Registered Certificates shall bear a legend
substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE
SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES
NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT
IN ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND
(A) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, OR (C) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND
DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE
OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT
PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR
AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH
CERTAIN OWNERSHIP AND TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED
TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN
THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF
SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER, AND MAY ALSO
BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE
IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A.
(c) With respect to any Certificate other than a Class A Certificate or
a Class A-X Certificate, no sale, transfer, pledge or other disposition by
any Holder of any such Certificate shall be made unless the Certificate
Registrar shall have received either (i) a representation letter from the
proposed purchaser or transferee of such Certificate to the effect that such
proposed purchaser or transferee is not (a) an employee benefit plan subject
to the fiduciary responsibility provisions of ERISA or Section 4975 of the
Code, or a governmental plan (as defined in Section 3(32) of ERISA) subject
to any federal, state or local law ("Similar Law") which is, to a material
extent, similar to the foregoing provisions of ERISA or the Code (each a
"Plan") or (b) a person acting on behalf of or using the assets of any such
Plan (including an entity whose underlying assets include Plan assets by
reason of investment in the entity by such Plan and the application of
Department of Labor Regulation Section 2510.3-101), other than an insurance
company using the assets of its general account under circumstances whereby
the purchase and holding of such Certificates by such insurance company would
be exempt from the prohibited transaction provisions of ERISA and the Code
under Prohibited Transaction Class Exemption 95-60 (it being understood that
delivery of a representation letter containing a representation
substantially in the form of paragraph 8 of Exhibit C attached hereto shall
satisfy the requirement of this Section 5.02(c)(i)), or (ii) if such
Certificate is presented for registration in the name of a purchaser or
transferee that is any of the foregoing, an Opinion of Counsel in form and
substance satisfactory to the Trustee, the Certificate Registrar and the
Depositor to the effect that the acquisition and holding of such Certificate
by such purchaser or transferee will not result in the assets of the Trust
Fund being deemed to be "plan assets" and subject to the fiduciary
responsibility provisions of ERISA, the prohibited transaction provisions of
the Code or the provisions of any Similar Law, will not constitute or result
in a "prohibited transaction" within the meaning of ERISA, Section 4975 of
the Code or any Similar Law, and will not subject the Trustee, the
Certificate Registrar, the Servicer, the Special Servicer, the Underwriter,
the Initial Purchaser or the Depositor to any obligation or liability
(including obligations or liabilities under ERISA, Section 4975 of the Code
or any such Similar Law) in addition to those set forth in the Agreement.
The Certificate Registrar shall not register the sale, transfer, pledge
or other disposition of any such Certificate unless the Certificate Registrar
has received either the representation letter described in clause (i) above
or the Opinion of Counsel described in clause (ii) above. The costs of any
of the foregoing representation letters or Opinions of Counsel shall not be
borne by any of the Depositor, the Servicer, the Special Servicer, the
Trustee and the Trust Fund. Each Certificate Owner of a Certificate other
than a Class A or Class A-X Certificate shall be deemed to represent that it
is not a Person specified in clauses (a), or (b) above. Any transfer, sale,
pledge or other disposition of any such Certificates that would constitute or
result in a prohibited transaction under ERISA, Section 4975 of the Code or
any Similar Law, or would otherwise violate the provisions of this
Section 5.02(c) shall be deemed absolutely null and void ab initio, to the
extent permitted under applicable law.
So long as any Class of Certificates other than the Class A and Class
A-X Certificates remains outstanding, the Servicer will make available, or
cause to be made available, upon written request with sufficient notice
during normal business hours, to any Holder and any Person to whom any such
Certificate of any such Class of Certificates may be offered or sold,
transferred, pledged or otherwise disposed of by such Holder, information
with respect to the Servicer, the Special Servicer or the Loans reasonably
necessary to the provision of an Opinion of Counsel described in this
Section 5.02(c).
(d) (i) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and
to have irrevocably authorized the Trustee under clause (ii) below to deliver
payments to a Person other than such Person. The rights of each Person
acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(A) No Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Disqualified Organization or agent
thereof (including a nominee, middleman or similar person) (an
"Agent"), a Plan or a Person acting on behalf of or investing the
assets of a Plan (such Plan or Person, an "ERISA Prohibited Holder")
or a Non-U.S. Person and shall promptly notify the Servicer, the
Trustee and the Certificate Registrar of any change or impending
change to such status;
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit substantially in the form attached hereto as Exhibit D-1
(a "Transfer Affidavit") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing
and warranting, among other things, that such Transferee is not a
Disqualified Organization or Agent thereof, an ERISA Prohibited
Holder or a Non-U.S. Person, and that it has reviewed the provisions
of this Section 5.02(d) and agrees to be bound by them;
(C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (b) above, if a Responsible Officer
of the Certificate Registrar has actual knowledge that the proposed
Transferee is a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, no Transfer of an Ownership
Interest in a Residual Certificate to such proposed Transferee shall
be effected; and
(D) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (1) to require a Transfer Affidavit
from any prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Residual Certificate and (2)
not to transfer its Ownership Interest in such Residual Certificate
unless it provides to the Certificate Registrar a letter
substantially in the form attached hereto as Exhibit D-2 (a
"Transferor Letter") certifying that, among other things, it has no
actual knowledge that such prospective Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a Non-
U.S. Person.
(ii) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this
Section 5.02(d), then the last preceding Holder of such Residual
Certificate that was in compliance with the provisions of this
Section 5.02(d) shall be restored, to the extent permitted by law, to
all rights as Holder thereof retroactive to the date of registration of
such Transfer of such Residual Certificate. None of the Trustee, the
Servicer, the Authenticating Agent and the Certificate Registrar shall
be under any liability to any Person for any registration of Transfer of
a Residual Certificate that is in fact not permitted by this
Section 5.02(d) or for making any payments due on such Certificate to
the Holder thereof or for taking any other action with respect to such
Holder under the provisions of this Agreement.
(iii) The Servicer shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions, upon
written request of the Trustee, all information in its possession and
necessary to compute any tax imposed as a result of the Transfer of an
Ownership Interest in a Residual Certificate to any Person who is a
Disqualified Organization or Agent thereof, including the information
described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-
2(a)(5) with respect to the "excess inclusions" of such Residual
Certificate.
(e) Subject to the restrictions on transfer and exchange set forth in
this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer
agent appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized
attorney), in the case of transfer, and a written request for exchange in the
case of exchange.
Following a proper request for transfer or exchange, the Certificate
Registrar shall, within five (5) Business Days of such request if made at
such Registrar Office, or within ten (10) Business Days if made at the office
of a transfer agent (other than the Certificate Registrar), execute and
deliver at such Registrar Office or at the office of such transfer agent, as
the case may be, to the transferee (in the case of transfer) or Holder (in
the case of exchange) or send by first class mail (at the risk of the
transferee in the case of transfer or Holder in the case of exchange) to such
address as the transferee or Holder, as applicable, may request in writing, a
Definitive Certificate or Certificates, as the case may require, for a like
aggregate Denomination and in such Denomination or Denominations as may be
requested. The Certificate Registrar may decline to accept any request for
an exchange or registration of transfer of any Certificate during the period
of 15 days preceding any Distribution Date.
(f) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate (other than a Definitive
Certificate issued in exchange for a Certificate representing an interest in
the Class A-1, Class A-2 or Class A-3 Certificates) or a beneficial interest
in a Book-Entry Certificate representing a Non-Registered Certificate is
being held by or for the benefit of a Person who is not an Eligible Investor,
or that such holding is unlawful under the laws of a relevant jurisdiction,
then the Certificate Registrar shall have the right, but not the obligation,
to void such transfer, if permitted under applicable law, or to require the
investor to sell such Definitive Certificate or beneficial interest in such
Book-Entry Certificate to an Eligible Investor within 14 days after notice of
such determination and each Certificateholder by its acceptance of a
Certificate authorizes the Certificate Registrar to take such action.
(g) The Certificate Registrar shall provide notice to the Trustee, the
Servicer, the Special Servicer and the Depositor of the transfer of any Class
H, Class I or Class J Certificate for so long as any such Certificate is a
Definitive Certificate. The Certificate Owner of a Class I Certificate or
Class J Certificate that wishes to receive the information described in
Section 3.28(c) shall provide notice to the Trustee, the Servicer, the
Special Servicer and the Depositor of the transfer of any beneficial
ownership in such Class I or Class J Certificate and of the address to which
such information should be sent. Upon the written request of the Trustee,
the Servicer, the Special Servicer or the Depositor, the Certificate
Registrar shall provide each such Person with an updated copy of the
Certificate Register.
(h) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02. With respect to any transfer or
exchange of any Certificate, the Certificate Registrar may require payment by
each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer or exchange.
(i) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate
Registrar shall hold such canceled Certificates in accordance with its
standard procedures.
SECTION 5.03. Book-Entry Certificates.
-----------------------
(a) The Regular Certificates (except, initially, the Class H, Class I
and Class J Certificates) shall initially be issued as one or more
Certificates registered in the name of the Depository or its nominee and,
except as provided in subsection (c) below, transfer of such Certificates may
not be registered by the Certificate Registrar unless such transfer is to a
successor Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. Such Certificate Owners
shall hold and transfer their respective Ownership Interests in and to such
Certificates through the book-entry facilities of the Depository and, except
as provided in subsection (c) below, shall not be entitled to Definitive
Certificates in respect of such Ownership Interests. All transfers by
Certificate Owners of their respective Ownership Interests in the Book-Entry
Certificates shall be made in accordance with the procedures established by
the Depository Participant or brokerage firm representing such Certificate
Owner. Each Depository Participant shall only transfer the Ownership
Interests in the Book-Entry Certificates of Certificate Owners it represents
or of brokerage firms for which it acts as agent in accordance with the
Depository's normal procedures.
(b) The Trustee, the Servicer, the Special Servicer, the Depositor and
the Certificate Registrar may for all purposes, including the making of
payments due on the Book-Entry Certificates, deal with the Depository as the
authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements
between such Certificate Owners and the Depository Participants and brokerage
firms representing such Certificate Owners. Multiple requests and directions
from, and votes of, the Depository as Holder of the Book-Entry Certificates
with respect to any particular matter shall not be deemed inconsistent if
they are made with respect to different Certificate Owners. The Trustee may
establish a reasonable record date in connection with solicitations of
consents from or voting by Certificateholders and shall give notice to the
Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to the Book-Entry
Certificates and (B) the Depositor is unable to locate a qualified successor,
or (ii) the Depositor at its option advises the Trustee and the Certificate
Registrar in writing that it elects to terminate the book-entry system
through the Depository with respect to some or all of the Classes, or
(iii) the Trustee determines that Definitive Certificates are required in
accordance with the provisions of Section 5.03(e), the Trustee shall notify
the affected Certificate Owners, through the Depository with respect to all
Classes, any Class or any portion of any Class of the Certificates, of the
occurrence of any such event and of the availability of Definitive
Certificates to Certificate Owners requesting the same.
Upon surrender to the Certificate Registrar of the Book-Entry
Certificates by the Depository or any custodian acting on behalf of the
Depository, accompanied by registration instructions from the Depository for
registration of transfer, the Certificate Registrar shall execute, and the
Authenticating Agent shall authenticate and deliver, within five (5) Business
Days of such request if made at the Registrar Office, or within ten (10)
Business Days if made at the office of a transfer agent (other than the
Certificate Registrar), the Definitive Certificates to the Certificate Owners
identified in such instructions. None of the Depositor, the Servicer, the
Trustee, the Special Servicer, the Authenticating Agent and the Certificate
Registrar shall be liable for any delay in delivery of such instructions and
may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates for purposes of
evidencing ownership of any Class of Certificates, the registered Holders of
such Definitive Certificates shall be recognized as Certificateholders
hereunder and, accordingly, shall be entitled directly to receive payments
on, to exercise Voting Rights with respect to, and to transfer and exchange
such Definitive Certificates.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and
(ii) shall bear a legend substantially to the following effect:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE CERTIFICATE REGISTRAR FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
The Book-Entry Certificates may be deposited with such other Depository
as the Certificate Registrar may from time to time designate, and shall bear
such legend as may be appropriate.
(e) If the Trustee has instituted or has been directed to institute any
judicial proceeding in a court to enforce the rights of the
Certificateholders under the Certificates, and the Trustee has been advised
by counsel that in connection with such proceeding it is necessary or
appropriate for the Trustee to obtain possession of all or any portion of the
Certificates evidenced by Book-Entry Certificates, the Trustee may in its
sole discretion determine that such Certificates shall no longer be
represented by such Book-Entry Certificates. In such event, the Certificate
Registrar will execute, the Authenticating Agent will authenticate and the
Certificate Registrar will deliver, in exchange for such Book-Entry
Certificates, Definitive Certificates in a Denomination equal to the
aggregate Denomination of such Book-Entry Certificates to the party so
requesting such Definitive Certificates. In such event, the Trustee shall
notify the affected Certificate Owners and make appropriate arrangements for
the effectuation of the purpose of this clause.
(f) Upon acceptance for exchange or transfer of a beneficial interest in
a Book-Entry Certificate for a Definitive Certificate, as provided herein,
the Certificate Registrar shall endorse on a schedule affixed to the related
Book-Entry Certificate (or on a continuation of such schedule affixed to such
Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(g) If a Holder of a Definitive Certificate wishes at any time to
transfer such Certificate to a Person who wishes to take delivery thereof in
the form of a beneficial interest in the Book-Entry Certificate, such
transfer may be effected only in accordance with Depository Rules and this
Section 5.03(g). Upon receipt by the Certificate Registrar at the Registrar
Office of (i) the Definitive Certificate to be transferred with an assignment
and transfer pursuant to Section 5.02(a), (ii) written instructions given in
accordance with Depository Rules directing the Certificate Registrar to
credit or cause to be credited to another account a beneficial interest in
the related Book-Entry Certificate, in an amount equal to the Denomination of
the Definitive Certificate to be so transferred, (iii) a written order given
in accordance with the Depository Rules containing information regarding the
account to be credited with such beneficial interest and (iv) if the affected
Certificate is a Non-Registered Certificate an Investment Representation
Letter from the transferee to the effect that such transferee is a Qualified
Institutional Buyer, the Certificate Registrar shall cancel such Definitive
Certificate, execute and deliver a new Definitive Certificate for the
Denomination of the Definitive Certificate not so transferred, registered in
the name of the Holder or the Holder's transferee (as instructed by the
Holder), and the Certificate Registrar shall instruct the Depository or the
custodian holding such Book-Entry Certificate on behalf of the Depository to
increase the Denomination of the related Book-Entry Certificate by the
Denomination of the Definitive Certificate to be so transferred, and to
credit or cause to be credited to the account of the Person specified in such
instructions a corresponding Denomination of such Book-Entry Certificate.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
-------------------------------------------------
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction
of the destruction, loss or theft of any Certificate and (ii) there is
delivered to the Trustee and the Certificate Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in
the absence of actual notice to the Trustee or the Certificate Registrar that
such Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and of like
Percentage Interest. Upon the issuance of any new Certificate under this
Section, the Trustee and the Certificate Registrar may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee and the Certificate Registrar) connected therewith.
Any replacement Certificate issued pursuant to this Section shall constitute
complete and indefeasible evidence of ownership in the Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.05. Persons Deemed Owners.
---------------------
Prior to due presentation of a Certificate for registration of transfer,
the Depositor, the Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agents of any of them may treat the person in
whose name such Certificate is registered as the owner of such Certificate
for the purpose of receiving distributions pursuant to Section 4.01 and for
all other purposes whatsoever, except as and to the extent provided in the
definition of "Certificateholder," and none of the Depositor, the Servicer,
the Special Servicer, the Trustee, the Certificate Registrar and any agent of
any of them shall be affected by notice to the contrary except as provided in
Section 5.02(d).
(End of Article V)
ARTICLE VI
THE DEPOSITOR, THE
SERVICER AND THE SPECIAL SERVICER
---------------------------------
SECTION 6.01. Liability of the Depositor, the Servicer and the Special
--------------------------------------------------------
Servicer.
- --------
The Depositor, the Servicer and the Special Servicer shall be liable in
accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Servicer and
the Special Servicer herein.
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor,
----------------------------------------------------
the Servicer or the Special Servicer.
- ------------------------------------
(a) Subject to subsection (b) below, the Depositor, the Servicer and the
Special Servicer each will keep in full effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation or organization, and each will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Loans and to
perform its respective duties under this Agreement.
(b) The Depositor, the Servicer and the Special Servicer each may be
merged or consolidated with or into any Person, or transfer all or
substantially all of its assets to any Person, in which case any Person
resulting from any merger or consolidation to which the Depositor, the
Servicer or the Special Servicer shall be a party, or any Person succeeding
to the business of the Depositor, the Servicer or the Special Servicer, shall
be the successor of the Depositor, the Servicer and the Special Servicer, as
the case may be, hereunder, without the execution or filing of any paper
(other than an assumption agreement wherein the successor shall agree to
perform the obligations of and serve as the Depositor, the Servicer or the
Special Servicer, as the case may be, in accordance with the terms of this
Agreement) or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however,
-------- -------
that such merger, consolidation or succession will not or has not resulted
in a withdrawal, downgrading or qualification of the then current ratings of
the Classes of Certificates that have been so rated (as evidenced by a
letter to such effect from each Rating Agency).
SECTION 6.03. Limitation on Liability of the Depositor, the Servicer,
------------------------------------------------------
the Special Servicer and Others.
- -------------------------------
(a) Neither the Depositor, the Trustee (whether acting in such capacity
or as the Authenticating Agent or the Certificate Registrar), the Servicer,
the Special Servicer nor any of the Affiliates, directors, officers,
employees or agents of any of the foregoing shall be under any liability to
the Trust Fund or the Certificateholders for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
-------- -------
shall not protect the Depositor, the Trustee, the Servicer, the Special
Servicer or any such Person against any breach of warranties or
representations made herein or any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of grossly negligent disregard of
obligations and duties hereunder. The Depositor, the Servicer, the Special
Servicer, the Trustee and any director, officer, employee or agent of the
Depositor, the Servicer or the Special Servicer may rely in good faith on
any document of any kind which, prima facie, is properly executed and
submitted by any Person respecting any matters arising hereunder.
The Depositor, the Servicer, the Special Servicer, the Trustee (whether
acting in such capacity or as the Authenticating Agent, as the Certificate
Registrar or as a board member of the Foundation), the Directing
Certificateholder and any Affiliate, director, officer, employee or agent of
any of the foregoing shall be indemnified and held harmless by the Trust Fund
against any loss, liability or expense incurred in connection with any legal
action relating to this Agreement, the Loans or the Certificates, other than
any loss, liability or expense: (i) specifically required to be borne
thereby pursuant to the terms hereof; (ii) incurred in connection with any
breach of a representation, warranty or covenant made by it herein;
(iii) incurred by reason of bad faith, willful misconduct or negligence in
the performance of its obligations or duties hereunder, or by reason of
grossly negligent disregard of such obligations or duties or (iv) in the case
of the Depositor and any of its directors, officers, employees and agents,
incurred in connection with any violation by any of them of any state or
federal securities law.
(b) None of the Depositor, the Trustee (whether acting in such capacity
or as the Authenticating Agent, as the Certificate Registrar or as a board
member of the Foundation), the Servicer, the Special Servicer or the
Directing Certificateholder shall be under any obligation to appear in,
prosecute or defend any legal or administrative action, proceeding, hearing
or examination that is not incidental to its respective duties under this
Agreement and which in its opinion may involve it in any expense or
liability; provided, however, that the Depositor, the Servicer, the Special
-------- -------
Servicer, the Trustee or the Directing Certificateholder may in its
discretion undertake any such action, proceeding, hearing or examination
that it may deem necessary or desirable in respect to this Agreement and the
rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the legal expenses and costs
of such action, proceeding, hearing or examination and any liability
resulting therefrom shall be expenses, costs and liabilities of the Trust
Fund, and the Depositor, the Servicer, the Special Servicer, the Trustee and
the Directing Certificateholder shall be entitled to be reimbursed therefor
out of amounts attributable to the Loans on deposit in the Certificate
Account as provided by Section 3.05(a).
(c) Each of the Servicer and the Special Servicer agrees to indemnify
the Depositor, the Trustee (whether acting in such capacity or as the
Authenticating Agent or Certificate Registrar) and the Trust Fund and each
other and any Affiliate, director, officer, employee or agent thereof, and
hold them harmless, from and against any and all claims, losses, penalties,
fines, forfeitures, reasonable legal fees and related out-of-pocket costs,
judgments, and any other out-of-pocket costs, liabilities, fees and expenses
that any of them may sustain arising from or as a result of any willful
misfeasance, bad faith or negligence of the Servicer or the Special Servicer,
as the case may be, in the performance of its obligations and duties under
this Agreement or by reason of grossly negligent disregard by the Servicer or
the Special Servicer, as the case may be, of its duties and obligations
hereunder or by reason of breach of any representations or warranties made
herein.
The Trustee, the Servicer, the Special Servicer or the Depositor, as the
case may be, shall immediately notify the Servicer or the Special Servicer,
as applicable, if a claim is made by a third party with respect to this
Agreement or the Loans entitling it to indemnification hereunder, whereupon
the Servicer or the Special Servicer, as the case may be, shall assume the
defense of such claim and pay all expenses in connection therewith, including
counsel fees, and promptly pay, discharge and satisfy any judgment or decree
which may be entered against it or them in respect of such claim. Any
failure to so notify the Servicer or the Special Servicer, as the case may
be, shall not affect any rights any of the foregoing Persons may have to
indemnification under this Agreement or otherwise, unless the Servicer's, or
the Special Servicer's, as the case may be, defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall
survive the termination of this Agreement and the termination or resignation
of the Servicer, the Trustee and the Special Servicer.
The Depositor agrees to indemnify the Servicer and any Affiliate,
director, officer, employee or agent thereof, and hold them harmless, from
and against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related out-of-pocket costs, judgments, and any
other out-of-pocket costs, liabilities, fees and expenses that any of them
may sustain arising from or as a result of any breach or failure in the
performance of the Servicer's obligations and duties under this Agreement
arising from or as a result of the inaccuracy of the Loan information
provided by the Depositor to the Servicer via electronic mail. The Servicer
shall immediately notify the Depositor if a claim is made by a third party
with respect to this Agreement or the Loans entitling it to indemnification
hereunder, whereupon the Depositor shall assume the defense of such claim and
pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim. Any failure to so
notify the Depositor shall not affect any rights any of the foregoing Persons
may have to indemnification under this Agreement or otherwise, unless the
Depositor's defense of such claim is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this
Agreement.
SECTION 6.04. Depositor, Servicer and Special Servicer Not to Resign.
------------------------------------------------------
Subject to the provisions of Section 6.02, none of the Depositor, the
Servicer and the Special Servicer shall resign from their respective
obligations and duties hereby imposed on each of them except upon (a)
a determination that such party's duties hereunder are no longer permissible
under applicable law or (b) in the case of the Servicer or Special Servicer,
upon the appointment of, and the acceptance of such appointment by, a
successor Servicer or Special Servicer, as applicable and receipt by the
Trustee of written confirmation from each applicable Rating Agency that such
resignation and appointment will not cause such Rating Agency to downgrade,
withdraw or qualify any of then current ratings assigned by such Rating
Agency to any Class of Certificates. Any such determination permitting the
resignation of the Depositor, the Servicer or the Special Servicer pursuant
to above clause (a) above shall be evidenced by an Opinion of Counsel (at the
expense of the resigning party) to such effect delivered to the Trustee. No
such resignation by the Servicer or the Special Servicer shall become
effective until the Trustee or a successor Servicer shall have assumed the
Servicer's or Special Servicer's, as applicable, responsibilities and
obligations in accordance with Section 7.02.
SECTION 6.05. Rights of the Depositor in Respect of the Servicer and
------------------------------------------------------
the Special Servicer.
- --------------------
The Depositor may, but is not obligated to, enforce the obligations of
the Servicer and the Special Servicer hereunder and may, but is not obligated
to, perform, or cause a designee to perform, any defaulted obligation of the
Servicer and the Special Servicer hereunder or exercise the rights of the
Servicer or Special Servicer, as applicable, hereunder; provided, however,
-------- -------
that the Servicer and the Special Servicer shall not be relieved of any of
their respective obligations hereunder by virtue of such performance by the
Depositor or its designee. The Depositor shall not have any responsibility
or liability for any action or failure to act by the Servicer or the Special
Servicer and is not obligated to supervise the performance of the Servicer or
the Special Servicer under this Agreement or otherwise.
(End of Article VI)
ARTICLE VII
DEFAULT
-------
SECTION 7.01. Events of Default; Servicer and Special Servicer
------------------------------------------------
Termination.
- -----------
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by the Servicer to make (x) any remittance
(including a P&I Advance) required to be made by the Servicer to the
Certificate Account, Servicing Accounts, Construction Loan Servicing
Account, Excess Interest Distribution Account, Interest Reserve Account
or either Distribution Account by 4:00 p.m. New York City time on the
Servicer Remittance Date or (y) any Servicing Advance or Yield
Protection Payment Advance when required to be made pursuant to this
Agreement; or
(ii) any failure by the Special Servicer to deposit into, or to
remit to the Servicer for deposit into, or the Servicer to make a
required deposit into the Certificate Account or the REO Account, or to
deposit into, or to remit to the Trustee for deposit into, the Lower-
Tier Distribution Account any amount required to be so deposited or
remitted by the Servicer or the Special Servicer, as the case may be,
pursuant to, and at the time specified by, the terms of this Agreement;
or
(iii) any failure on the part of the Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements on the part of the Servicer or the Special
Servicer contained in this Agreement which continues unremedied for a
period of 30 days (15 days in the case of a failure to pay the premium
for any Insurance Policy required to be maintained hereunder) after the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer or the Special Servicer,
as the case may be, by any other party hereto, or to the Servicer, the
Special Servicer, the Depositor and the Trustee by the Holders of
Certificates of any Class evidencing, as to such Class, Percentage
Interests aggregating not less than 25%; provided, however,
-------- -------
that with respect to any such failure which is not curable within such
30-day period or 15-day period, as applicable, the Servicer or the
Special Servicer, as the case may be, shall have an additional cure
period of thirty (30) days to effect such cure so long as the Servicer
or the Special Servicer, as the case may be, has commenced to cure such
failure within such initial 30-day period or 15-day period, as
applicable, and has diligently pursued, and is continuing to pursue, a
full cure; or
(iv) any breach on the part of the Servicer or the Special Servicer
of any representation or warranty contained in Section 3.23 or
Section 3.24, as applicable, which materially and adversely affects the
interests of any Class of Certificateholders and which continues
unremedied for a period of 30 days after the date on which notice of
such breach, requiring the same to be remedied, shall have been given to
the Servicer or the Special Servicer, as the case may be, by the
Depositor or the Trustee, or to the Servicer, the Special Servicer, the
Depositor and the Trustee by the Holders of Certificates of any
Class evidencing, as to such Class, Percentage Interests aggregating not
less than 25%; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or
similar law for the appointment of a conservator, receiver, liquidator,
trustee or similar official in any bankruptcy, insolvency, readjustment
of debt, marshaling of assets and liabilities or similar proceedings, or
for the winding-up or liquidation of its affairs, shall have been
entered against the Servicer or the Special Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period
of 60 days; or
(vi) the Servicer or the Special Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Servicer or the Special Servicer or of or relating to all or
substantially all of its property; or
(vii) the Servicer or the Special Servicer shall admit in writing
its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations or take any
corporate action in furtherance of the foregoing; or
(viii) the Trustee shall have received written notice from any of the
Rating Agencies that the continuation of the Servicer or Special
Servicer, as the case may be, has resulted, or would result, in and of
itself, in a downgrading, qualification or withdrawal of the then-
current rating on any Class of Certificates that are rated by a Rating
Agency if the Servicer or Special Servicer, as the case may be, is not
replaced.
(b) If any Event of Default with respect to the Servicer or the Special
Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and
every such case, so long as such Event of Default shall not have been
remedied, the Trustee may, and at the written direction of the Holders of
Certificates entitled to at least 51% of the Voting Rights, shall, terminate,
by notice in writing to the Defaulting Party, with a copy of such notice to
the Depositor, all of the rights and obligations of the Defaulting Party
under this Agreement and in and to the Loans and the proceeds thereof;
provided, however, that the Defaulting Party shall be entitled to the payment
- -------- -------
of accrued and unpaid compensation and reimbursement through the date of
such termination as provided for under this Agreement for services rendered
and expenses incurred.
From and after the receipt by the Defaulting Party of such written
notice, all authority and power of the Defaulting Party under this Agreement,
whether with respect to the Certificates (other than as a Holder of any
Certificate) or the Loans or otherwise, shall pass to and be vested in the
Trustee pursuant to and under this Section, and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf
of and at the expense of the Defaulting Party, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Loans and related documents, or otherwise.
The Servicer and Special Servicer each agree that if it is terminated
pursuant to this Section 7.01(b), it shall promptly (and in any event no
later than 20 Business Days subsequent to its receipt of the notice of
termination) provide the Trustee with all documents and records requested by
it to enable it to assume the Servicer's or the Special Servicer's, as the
case may be, functions hereunder, and shall cooperate with the Trustee in
effecting the termination of the Servicer's or the Special Servicer's, as the
case may be, responsibilities and rights hereunder, including, without
limitation, the transfer within five (5) Business Days to the Trustee for
administration by it of all cash amounts which shall at the time be or should
have been credited by the Servicer to the Certificate Account, the
Construction Loan Servicing Account or any Servicing Account (if it is the
Defaulting Party) or by the Special Servicer to the REO Account (if it is the
Defaulting Party) or thereafter be received with respect to the Loans or any
REO Property (provided, however, that the Servicer and the Special Servicer
-------- -------
each shall, if terminated pursuant to this Section 7.01(b), continue to be
entitled to receive all amounts accrued or owing to it under this Agreement
on or prior to the date of such termination, whether in respect of Advances
(in the case of the Servicer) or otherwise, and it and its directors,
officers, employees and agents shall continue to be entitled to the benefits
of Section 6.03 notwithstanding any such termination).
(c) The Holder or Holders of more than 50% of the aggregate Certificate
Balance of the then Controlling Class shall be entitled to terminate the
rights and obligations of the Special Servicer under this Agreement, with or
without cause, upon ten (10) Business Days notice to the Special Servicer,
the Servicer and the Trustee, and to appoint a successor Special Servicer;
provided, however, that (i) such successor will meet the requirements set
- -------- -------
forth in Section 7.02 and (ii) as evidenced in writing by each of the Rating
Agencies, the proposed successor of such Special Servicer will not, in and
of itself, result in a downgrading, withdrawal or qualification of the then
current ratings provided by the Rating Agencies in respect to any Class of
then outstanding Certificates that is rated. No penalty or fee shall be
payable to the Special Servicer with respect to any termination pursuant to
this Section 7.01(c).
(d) The Servicer and Special Servicer shall, from time to time, take all
such actions as are required by them in order to maintain their respective
status as an approved servicer and special servicer, as applicable and as
pertains to this transaction, with each of the Rating Agencies.
SECTION 7.02. Trustee to Act; Appointment of Successor.
----------------------------------------
On and after the time the Servicer or the Special Servicer, as the case
may be, either resigns pursuant to the first sentence of Section 6.04 or
receives a notice of termination for cause pursuant to Section 7.01(a), and
provided that no acceptable successor has been appointed, the Trustee shall
be the successor to the Servicer or Special Servicer, as the case may be, in
all respects in its capacity as Servicer or Special Servicer under this
Agreement and the transactions set forth or provided for herein and shall be
subject to all the responsibilities, duties, liabilities and limitations on
liability relating thereto and that arise thereafter placed on or for the
benefit of the Servicer or Special Servicer by the terms and provisions
hereof; provided, however, that any failure to perform such duties or
-------- -------
responsibilities caused by the terminated party's failure under Section 7.01
to provide information or moneys required hereunder shall not be considered
a default by such successor hereunder.
The appointment of a successor Servicer shall not affect any liability
of the predecessor Servicer which may have arisen prior to its termination as
Servicer, and the appointment of a successor Special Servicer shall not
affect any liability of the predecessor Special Servicer which may have
arisen prior to its termination as Special Servicer. The Trustee in its
capacity as successor to the Servicer or the Special Servicer, as the case
may be, shall not be liable for any of the representations and warranties of
the Servicer or the Special Servicer, respectively, herein or in any related
document or agreement, for any acts or omissions of the predecessor Servicer
or Special Servicer or for any losses incurred by the Servicer pursuant to
Section 3.06 hereunder, nor shall the Trustee be required to purchase any
Loan hereunder.
As compensation therefor, the Trustee as successor Servicer shall be
entitled to the Servicing Fees and all fees relating to the Loans which the
Servicer would have been entitled to if the Servicer had continued to act
hereunder, including but not limited to any income or other benefit from any
Permitted Investment pursuant to Section 3.06, and as successor to the
Special Servicer shall be entitled to the Special Servicing Fees to which the
Special Servicer would have been entitled if the Special Servicer had
continued to act hereunder. Should the Trustee succeed to the capacity of
the Servicer or the Special Servicer, the Trustee shall be afforded the same
standard of care and liability as the Servicer or the Special Servicer, as
applicable, hereunder notwithstanding anything in Section 8.01 to the
contrary, but only with respect to actions taken by it in its role as
successor Servicer or successor Special Servicer, as the case may be, and not
with respect to its role as Trustee hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to
act as successor to the Servicer or Special Servicer, or shall, if it is
unable to so act, or if the Trustee is not approved as a servicer or special
servicer, as applicable, by each Rating Agency or if the Holders of
Certificates entitled to at least 51% of the Voting Rights so request in
writing to the Trustee, promptly appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution
which meets the criteria set forth herein, as the successor to the Servicer
or the Special Servicer, as applicable, hereunder in the assumption of all or
any part of the responsibilities, duties or liabilities of the Servicer or
Special Servicer hereunder. No appointment of a successor to the Servicer or
the Special Servicer under this Section 7.02 shall be effective (i) until
each of the Rating Agencies shall have confirmed in writing that its then-
current rating (if any) of each Class of Certificates will not be qualified,
downgraded or withdrawn by reason thereof and (ii) until the assumption in
writing by the successor to the Servicer or the Special Servicer of all its
responsibilities, duties and liabilities hereunder that arise thereafter.
Pending appointment of a successor to the Servicer or the Special Servicer
hereunder, unless the Trustee shall be prohibited by law from so acting, the
Trustee shall act in such capacity as herein above provided.
In connection with such appointment and assumption of a successor to the
Servicer or Special Servicer as described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on Loans
as it and such successor shall agree; provided, however, that no such
-------- -------
compensation with respect to a successor Servicer or successor Special
Servicer, as the case may be, shall be in excess of that permitted the
terminated Servicer or Special Servicer, as the case may be, hereunder.
The Trustee, the Servicer or the Special Servicer (whichever is not the
terminated party) and such successor shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession.
Any costs and expenses associated with the transfer of the servicing
function (other than with respect to a termination without cause) under this
Agreement shall be borne by the predecessor Servicer or Special Servicer.
SECTION 7.03. Notification to Certificateholders.
----------------------------------
(a) Upon any resignation of the Servicer or the Special Servicer
pursuant to Section 6.04, any termination of the Servicer or the Special
Servicer pursuant to Section 7.01 or any appointment of a successor to the
Servicer or the Special Servicer pursuant to Section 7.02, the Trustee shall
give prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of any
event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) 5 days after the Trustee would be
deemed to have notice of the occurrence of such an event in accordance with
Section 8.02(vii), the Trustee shall transmit by mail to the Depositor and
all Certificateholders notice of such occurrence, unless such default shall
have been cured.
SECTION 7.04. Waiver of Events of Default.
---------------------------
The Holders of Certificates representing at least 662/3% of the Voting
Rights allocated to each Class of Certificates affected by any Event of
Default hereunder may waive such Event of Default within 20 days of the
receipt of notice from the Trustee of the occurrence of such Event of
Default; provided, however, that an Event of Default under clause (i) of
-------- -------
Section 7.01(a) may be waived only by all of the Certificateholders of each
affected Class. Upon any such waiver of an Event of Default, such Event of
Default shall cease to exist and shall be deemed to have been remedied for
every purpose hereunder. No such waiver shall extend to any subsequent or
other Event of Default or impair any right consequent thereon except to the
extent expressly so waived. Notwithstanding any other provisions of this
Agreement, for purposes of waiving any Event of Default pursuant to this
Section 7.04, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor shall be entitled to the same Voting Rights with
respect to the matters described above as they would if any other Person
held such Certificates.
SECTION 7.05. Trustee Advances.
----------------
(a) In the event that the Servicer fails to fulfill its obligations
hereunder to make any Advances, the Trustee shall perform such obligations
(x) within one Business Day of such failure by the Servicer with respect to
Servicing Advances to the extent a Responsible Officer of the Trustee has
been notified in writing of such failure with respect to such Servicing
Advances and (y) by the close of business, New York City time, on the related
P&I Advance Date with respect to P&I Advances. With respect to any such
Advance made by the Trustee, the Trustee shall succeed to all of the
Servicer's rights with respect to Advances hereunder, including, without
limitation, the Servicer's rights of reimbursement and interest on each
Advance at the Reimbursement Rate, and rights to determine that a proposed
Advance is a Nonrecoverable P&I Advance or Servicing Advance, as the case may
be, (without regard to any impairment of any such rights of reimbursement
caused by such Servicer's default in its obligations hereunder); provided,
--------
however, that if Advances made by both the Trustee and the Servicer shall at
- -------
any time be outstanding, or any interest on any Advance shall be accrued and
unpaid, all amounts available to repay such Advances and the interest
thereon hereunder shall be applied entirely to the Advances outstanding to
the Trustee, until such Advances shall have been repaid in full, together
with all interest accrued thereon, prior to reimbursement of the Servicer
for such Advances. The Trustee shall be entitled to conclusively rely on
any notice given with respect to a Nonrecoverable Advance hereunder.
(End of Article VII)
ARTICLE VIII
CONCERNING THE TRUSTEE
----------------------
SECTION 8.01. Duties of Trustee.
-----------------
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically
set forth in this Agreement. If an Event of Default occurs and is
continuing, then (subject to Section 8.02(vii) below) the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and
use the same degree of care and skill in their exercise as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee which are specifically required to be furnished
pursuant to any provision of this Agreement (other than the Mortgage Files,
the review of which is specifically governed by the terms of Article II),
shall examine them to determine whether they conform to the requirements of
this Agreement. If any such instrument is found not to conform to the
requirements of this Agreement in a material manner, the Trustee shall make a
request to the responsible party to have the instrument corrected. The
Trustee shall not be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Depositor, the Servicer or the Special Servicer,
and accepted by the Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct; provided, however, that:
-------- -------
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be
read into this Agreement against the Trustee and, in the absence of bad
faith on the part of the Trustee, the Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to at
least 25% of the Voting Rights relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement (unless a higher percentage of Voting Rights is required for
such action).
(iv) Subject to the other provisions of this Agreement and without
limiting the generality of this Section 8.01, the Trustee shall have no
duty except in the capacity as successor Servicer or successor Special
Servicer (A) to see to any recording, filing, or depositing of this
Agreement or any agreement referred to herein or any financing statement
or continuation statement evidencing a security interest, or to see to
the maintenance of any such recording or filing or depositing or to any
rerecording, refiling or redepositing of any thereof, (B) to see to any
insurance, and (C) to confirm or verify the contents of any reports or
certificates of the Servicer or Special Servicer delivered to the
Trustee pursuant to this Agreement reasonably believed by the Trustee to
be genuine and to have been signed or presented by the proper party or
parties.
(d) Within 90 days after the Closing Date, the Trustee, with the
cooperation of the Depositor and its agents, shall advise in writing all
related Borrowers in respect of ARD Loans that the Trust Fund waives any and
all rights to receive Excess Interest at an Excess Rate exceeding 200 basis
points (and all interest on such Excess Interest). The Trustee may not waive
any right to receive Excess Interest in respect of any ARD Loan if the
related Borrower has not been so advised within the first 90 days after the
Closing Date unless the Trustee is provided with an Opinion of Counsel to the
effect that such waiver would not constitute an "exchange" under Section 1001
of the Code. Each such Borrower shall be an intended third-party beneficiary
of the provisions of this paragraph.
SECTION 8.02. Certain Matters Affecting the Trustee.
-------------------------------------
Except as otherwise provided in Section 8.01:
(i) The Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, Appraisal, bond or
other paper or document reasonably believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance therewith;
(iii) The Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless, in the Trustee's reasonable
opinion, such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; the Trustee shall
not be required to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it; nothing contained herein shall, however, relieve the
Trustee of the obligation, upon the occurrence of an Event of Default
which has not been cured, to exercise such of the rights and powers
vested in it by this Agreement, and to use the same degree of care and
skill in their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(iv) The Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed
by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by Holders
of Certificates entitled to at least 50% of the Voting Rights; provided,
--------
however, that if the payment within a reasonable time to the Trustee of
-------
the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such
action. The reasonable expense of every such reasonable examination
shall be paid by the Servicer or, if paid by the Trustee, shall be repaid
by the Servicer upon demand;
(vi) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys; provided, however, that the appointment of such agents or
-------- -------
attorneys shall not relieve the Trustee of its duties or obligations
hereunder;
(vii) For all purposes under this Agreement, the Trustee shall not
be required to take any action with respect to, or be deemed to have
notice or knowledge of any default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or shall
have received written notice thereof. In the absence of receipt of such
notice and such actual knowledge otherwise obtained, the Trustee may
conclusively assume that there is no default or Event of Default;
(viii) The Trustee shall not be responsible for any act or omission
of the Servicer, the Special Servicer or the Directing Certificateholder
(unless the Trustee is acting as Servicer, Special Servicer or the
Directing Certificateholder, as the case may be) or of the Depositor;
and
(ix) The Trustee shall not be required to give any bond or surety
in respect of the execution of the Trust Fund created hereby or the
power granted hereunder.
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of
-------------------------------------------------
Certificates or Loans.
- ---------------------
The recitals contained herein and in the Certificates, other than the
acknowledgments of the Trustee in Sections 2.02 and 2.04 and the signature,
if any, of the Trustee set forth on any outstanding Certificate, shall be
taken as the statements of the Depositor, the Servicer or the Special
Servicer, as the case may be, and the Trustee assumes no responsibility for
their correctness. The Trustee does not make any representations as to the
validity or sufficiency of this Agreement or of any Certificate (other than
as to the signature, if any, of the Trustee set forth thereon) or of any Loan
or related document. The Trustee shall not be accountable for the use or
application by the Depositor of any of the Certificates issued to it or of
the proceeds of such Certificates, or for the use or application of any funds
paid to the Depositor in respect of the assignment of the Loans to the Trust
Fund, or any funds deposited in or withdrawn from the Certificate Account or
any other account by or on behalf of the Depositor, the Servicer, the Special
Servicer or the Trustee. The Trustee shall not be responsible for the
accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Depositor, the
Servicer or the Special Servicer, and accepted by the Trustee, in good faith,
pursuant to this Agreement.
SECTION 8.04. Trustee May Own Certificates.
----------------------------
The Trustee in its individual capacity and not as Trustee, may become
the owner or pledgee of Certificates, and may deal with the Depositor, the
Servicer, the Special Servicer, the Initial Purchaser and the Underwriter in
banking transactions, with the same rights it would have if it were not
Trustee.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of
------------------------------------------------
Trustee.
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(a) As compensation for the performance of its duties, the Trustee will
be paid the Trustee Fee, equal to one month's interest at the Trustee Fee
Rate, which shall cover recurring and otherwise reasonably anticipated
expenses of the Trustee. The Trustee Fee shall be paid with respect to each
Loan and REO Loan at a rate equal to 0.0015% per annum computed on the basis
of a 360-day year consisting of twelve 30-day months on the Stated Principal
Balance of such Loan or REO Loan. The Trustee Fee (which shall not be
limited to any provision of law in regard to the compensation of a trustee of
an express trust) shall constitute the Trustee's sole form of compensation
for all services rendered by it in the execution of the trusts hereby created
and in the exercise and performance of any of the powers and duties of the
Trustee hereunder.
(b) The Trustee and any Affiliate, director, officer, employee or agent
of the Trustee shall be entitled to be indemnified and held harmless by the
Trust Fund (to the extent of amounts on deposit in the Lower-Tier
Distribution Account from time to time) against any loss, liability or
expense (including, without limitation, costs and expenses of litigation, and
of investigation, counsel fees, damages, judgments and amounts paid in
settlement, and expenses incurred in becoming successor servicer, to the
extent not otherwise paid hereunder) arising out of, or incurred in
connection with, this Agreement, the Loans, the Certificates or any act or
omission of the Trustee relating to the exercise and performance of any of
the powers and duties of the Trustee hereunder; provided, however, that
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neither the Trustee nor any of the other above specified Persons shall be
entitled to indemnification pursuant to this Section 8.05(b) for (i)
allocable overhead, (ii) expenses or disbursements incurred or made by or on
behalf of the Trustee in the normal course of the Trustee's performing its
duties in accordance with any of the provisions hereof, which are not
"unanticipated expenses of the REMIC" within the meaning of Treasury
Regulations Section 1.860G-1(b)(3)(ii), (iii) any expense or liability
specifically required to be borne thereby pursuant to the terms hereof or
(iv) any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of the Trustee's
obligations and duties hereunder, or by reason of grossly negligent
disregard of such obligations or duties, or as may arise from a breach of
any representation, warranty or covenant of the Trustee made herein. The
provisions of this Section 8.05(b) shall survive any resignation or removal
of the Trustee and appointment of a successor thereto.
SECTION 8.06. Eligibility Requirements for Trustee.
------------------------------------
The Trustee hereunder shall at all times be, and will be required to
resign if it fails to be, (i) a corporation, national bank or national
banking association, organized and doing business under the laws of any state
or the United States of America, authorized under such laws to exercise
corporate trust powers and to accept the trust conferred under this
Agreement, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authority and shall
not be an Affiliate of the Servicer or the Special Servicer (except during
any period when the Trustee is acting as, or has become successor to, the
Servicer or the Special Servicer, as the case may be, pursuant to
Section 7.02), (ii) an institution insured by the Federal Deposit Insurance
Corporation and (iii) an institution whose long-term senior unsecured debt is
rated "AA-" by Fitch and "Aa3" by Moody's and that has a short-term rating of
"A-1" by S&P (or such entity as would not, as evidenced in writing by such
Rating Agency, result in the qualification, downgrading or withdrawal of any
of then current ratings then assigned thereby to the Certificates).
If such corporation, national bank or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section the combined capital and surplus of such
corporation, national bank or national banking association shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In the event the place of business from which the
Trustee administers the Upper-Tier REMIC and the Lower-Tier REMIC is in a
state or local jurisdiction that imposes a tax on the Trust Fund on the net
income of a REMIC (other than a tax corresponding to a tax imposed under the
REMIC Provisions), the Trustee shall elect either to (i) resign immediately
in the manner and with the effect specified in Section 8.07, (ii) pay such
tax at no expense to the Trust Fund or (iii) administer the Upper-Tier REMIC
and the Lower-Tier REMIC from a state and local jurisdiction that does not
impose such a tax.
SECTION 8.07. Resignation and Removal of the Trustee.
--------------------------------------
(a) The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Depositor, the
Servicer, the Special Servicer and to all Certificateholders. Upon receiving
such notice of resignation, the Depositor shall promptly appoint a successor
trustee acceptable to the Servicer by written instrument, in duplicate, which
instrument shall be delivered to the resigning Trustee and to the successor
trustee. A copy of such instrument shall be delivered to the Servicer, the
Special Servicer and the Certificateholders by the Depositor. If no successor
trustee shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee.
(b) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 and shall fail to resign after written
request therefor by the Depositor or the Servicer, or if at any time the
Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabilitation, conservation
or liquidation, then the Depositor may remove the Trustee and appoint a
successor trustee acceptable to the Servicer by written instrument, in
duplicate, which instrument shall be delivered to the Trustee so removed and
to the successor trustee. A copy of such instrument shall be delivered to the
Servicer, the Special Servicer and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Servicer, one complete set to the
Trustee so removed and one complete set to the successor so appointed. A copy
of such instrument shall be delivered to the Depositor, the Special Servicer
and the remaining Certificateholders by the Servicer.
Any resignation or removal of the Trustee and appointment of a successor
Trustee pursuant to any of the provisions of this Section 8.07 shall not
become effective until acceptance of appointment by the successor Trustee as
provided in Section 8.08.
Upon any succession of the Trustee under this Agreement, the predecessor
Trustee shall be entitled to the payment of accrued and unpaid compensation
and reimbursement as provided for under this Agreement for services rendered
and expenses incurred. No Trustee shall be personally liable for any action
or omission of any successor Trustee.
SECTION 8.08. Successor Trustee.
-----------------
(a) Any successor Trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor, the Servicer, the Special
Servicer and to its predecessor Trustee, an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee, shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with the like effect as if originally named as Trustee herein. The
predecessor Trustee shall deliver to the successor trustee all Mortgage Files
and related documents and statements held by it hereunder (other than any
Mortgage Files at the time held on its behalf by a Custodian, which Custodian
shall become the agent of the successor Trustee), and the Depositor, the
Servicer, the Special Servicer and the predecessor Trustee shall execute and
deliver such instruments and do such other things as may reasonably be
required to more fully and certainly vest and confirm in the successor
Trustee all such rights, powers, duties and obligations, and to enable the
successor Trustee to perform its obligations hereunder.
(b) No successor Trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor Trustee as provided in
this Section 8.08, the Servicer shall mail notice of the succession of such
Trustee hereunder to the Depositor and the Certificateholders. If the
Servicer fails to mail such notice within 10 days after acceptance of
appointment by the successor Trustee, such successor Trustee shall cause such
notice to be mailed at the expense of the Servicer.
SECTION 8.09. Merger or Consolidation of Trustee.
----------------------------------
Any Person into which the Trustee may be merged or converted or with
which it may be consolidated or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Person succeeding to all or substantially all of the corporate trust business
of the Trustee, shall be the successor of the Trustee, hereunder; provided,
that, in the case of the Trustee, such successor Person shall be eligible
under the provisions of Section 8.06, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. The Trustee will provide notice of
such event to the Servicer, the Special Servicer, the Depositor and the
Rating Agencies.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be
located, the Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such
title to the Trust Fund, or any part thereof, and, subject to the other
provisions of this Section 8.10, such powers, duties, obligations, rights and
trusts as the Servicer and the Trustee may consider necessary or desirable.
If the Servicer shall not have joined in such appointment within 15 days
after the receipt by it of a request to do so, or in case an Event of Default
shall have occurred and be continuing, the Trustee alone shall have the power
to make such appointment. No co-trustee or separate trustee hereunder shall
be required to meet the terms of eligibility as a successor trustee under
Section 8.06 hereunder and no notice to Holders of Certificates of the
appointment of co-trustee(s) or separate trustee(s) shall be required under
Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder
or as successor to the Servicer or the Special Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the
holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then-separate trustees and co-
trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article VIII. Each separate trustee and co-
trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject
to all the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Trustee. Every such instrument
shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or co-
trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11. Appointment of Custodians.
-------------------------
The Trustee may, with the consent of the Servicer, appoint one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution subject to
supervision by federal or state authority, shall have combined capital and
surplus of at least $15,000,000 and shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the
Depositor or any Affiliate of the Depositor. Each Custodian shall be subject
to the same obligations and standard of care as would be imposed on the
Trustee hereunder in connection with the retention of Mortgage Files directly
by the Trustee. The appointment of one or more Custodians shall not relieve
the Trustee from any of its obligations hereunder, and the Trustee shall
remain responsible for all acts and omissions of any Custodian. Any
Custodian appointed hereunder must maintain a fidelity bond and errors and
omissions policy in an amount customary for Custodians which serve in such
capacity in commercial mortgage loan securitization transactions.
SECTION 8.12. Access to Certain Information.
-----------------------------
(a) On or prior to the date of the first sale of any Non-Registered
Certificate to an Independent third party, the Depositor shall provide to the
Trustee a copy of any private placement memorandum or other disclosure
document used by the Depositor or its Affiliate in connection with the offer
and sale of the Class of Certificates to which such Non-Registered
Certificate relates. In addition, if any such private placement memorandum
or disclosure document is revised, amended or supplemented at any time
following the delivery thereof to the Trustee, the Depositor promptly shall
inform the Trustee of such event and shall deliver to the Trustee a copy of
the private placement memorandum or disclosure document, as revised, amended
or supplemented.
The Trustee shall maintain at its offices primarily responsible for
administering the Trust Fund and shall, upon reasonable advance written
notice, make available during normal business hours for review by any Holder
of a Certificate, the Depositor, the Servicer, the Special Servicer, the
Directing Certificateholder, any Rating Agency or any other Person to whom
the Trustee believes such disclosure is appropriate, originals or copies of
the following items to the extent such documents have been delivered to the
Trustee: (i) in the case of a Holder or prospective transferee of a Non-
Registered Certificate, any private placement memorandum or other disclosure
document relating to the Class of Certificates to which such Non-Registered
Certificate belongs, in the form most recently provided to the Trustee and
(ii) in all cases, (a) this Agreement and any amendments hereto entered into
pursuant to Section 10.01, (b) all statements required to be delivered to
Certificateholders of the relevant Class pursuant to Section 4.02 since the
Closing Date, (c) all Officer's Certificates delivered to the Trustee since
the Closing Date pursuant to Section 3.13, (d) all accountants' reports
delivered to the Trustee since the Closing Date pursuant to Section 3.14,
(e) any inspection report prepared by the Servicer, Sub-Servicer or Special
Servicer, as applicable, and delivered to the Trustee and Servicer in respect
of each Mortgaged Property pursuant to Section 3.12(a), (f) as to each Loan
pursuant to which the related Mortgagor is required to deliver such items or
the Special Servicer has otherwise acquired such items, the most recent
annual operating statement and rent roll of the related Mortgaged Property
and financial statements of the related Mortgagor and any other reports of
the Mortgagor collected by the Servicer, Sub-Servicer or Special Servicer, as
applicable, and delivered to the Trustee pursuant to Section 3.12(b),
together with the accompanying written reports to be prepared by the Special
Servicer and delivered to the Trustee pursuant to Section 3.12(b), (g) any
and all notices, reports and Environmental Assessments delivered to the
Trustee with respect to any Mortgaged Property securing a Defaulted Loan as
to which the environmental testing contemplated by Section 3.09(c) revealed
that either of the conditions set forth in clauses (i) and (ii) of the first
sentence thereof was not satisfied (but only for so long as such Mortgaged
Property or the related Loan are part of the Trust Fund), (h) any and all
modifications, waivers and amendments of the terms of a Loan entered into by
the Servicer or the Special Servicer and delivered to the Trustee pursuant to
Section 3.20 (but only for so long as the affected Loan is part of the Trust
Fund), (i) any and all Officer's Certificates delivered to the Trustee to
support the Servicer's determination that any P&I Advance or Servicing
Advance was or, if made, would be a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance, as the case may be, (j) any and all of the
Loan documents contained in the Mortgage File, (k) any and all Appraisals
obtained pursuant to the definition of "Appraisal Reduction" herein, (l)
information regarding the occurrence of Servicing Transfer Events as to the
Loans and (m) any and all Sub-Servicing Agreements and any amendments thereto
and modifications thereof.
Copies of any and all of the foregoing items will be available from the
Trustee upon written request; provided, however, that the Trustee shall be
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permitted to require payment of a sum sufficient to cover the reasonable
costs and expenses of providing such copies, except in the case of copies
provided to the Rating Agencies, which shall be free of charge. In
addition, without limiting the generality of the foregoing, the Holder of
any Class I or Class J Certificate may upon written request from the Trustee
obtain a copy of any factual report (other than the Asset Status Report)
delivered to the Rating Agencies under this Agreement.
(b) Notwithstanding anything to the contrary herein, in addition to the
reports and information made available and distributed pursuant to the terms
of this Agreement (including the information set forth in Section 8.12(a)),
the Servicer and the Trustee shall, in accordance with such reasonable rules
and procedures as each may adopt (which may include the requirement that an
agreement that provides that such information shall be used solely for
purposes of evaluating the investment characteristics of the Certificates be
executed), also provide the reports available to Certificateholders pursuant
to Section 4.02, as well as certain additional information received by the
Servicer or the Trustee, as the case may be, to any Certificateholder, the
Underwriter, the Initial Purchaser, any Certificate Owner or any prospective
investor identified as such by a Certificate Owner or the Underwriter, that
requests such reports or information; provided that the Servicer or the
Trustee, as the case may be, shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing copies of
such reports or information.
(c) With respect to any information furnished by the Trustee or the
Servicer pursuant to this Section 8.12, the Trustee or Servicer, as the case
may be, shall be entitled to indicate the source of such information and the
Trustee or Servicer, as applicable, may affix thereto any disclaimer it deems
appropriate in its discretion. The Trustee or the Servicer, as applicable,
shall notify Certificateholders of the availability of any such information
in any manner as it, in its sole discretion, may determine. In connection
with providing access to or copies of the items described in the preceding
paragraph, the Trustee or the Servicer, as the case may be, may require (a)
in the case of Certificate Owners, a confirmation executed by the requesting
Person substantially in form and substance reasonably acceptable to the
Servicer or Trustee, as applicable, generally to the effect that such Person
is a beneficial holder of Certificates or an investment advisor representing
such Person and is requesting the information solely for use in evaluating
such Person's investment in the Certificates and will otherwise keep such
information confidential and (b) in the case of a prospective purchaser or an
investment advisor representing such Person, confirmation executed by the
requesting Person in form and substance reasonably acceptable to the Trustee
or the Servicer, as the case may be, generally to the effect that such Person
is a prospective purchaser of a Certificate or an interest therein or an
investment advisor representing such Person, and is requesting the
information solely for use in evaluating a possible investment in
Certificates. Neither the Servicer nor the Trustee shall be liable for the
dissemination of information in accordance with this Agreement.
SECTION 8.13. Representations and Warranties of the Trustee.
---------------------------------------------
(a) The Trustee hereby represents and warrants to the Depositor, the
Servicer and the Special Servicer and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association, duly organized,
validly existing and in good standing under the laws of the United
States of America;
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by
the Trustee, will not violate the Trustee's charter and by-laws or
constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in the breach of,
any material agreement or other instrument to which it is a party or
which is applicable to it or any of its assets;
(iii) The Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Trustee, enforceable against the Trustee
in accordance with the terms hereof, subject to (a) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally and the rights
of creditors of banks specifically and (b) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law;
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of the Trustee to perform its obligations under this Agreement
or the financial condition of the Trustee;
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the
Trustee from entering into this Agreement or, in the Trustee's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Trustee to perform its obligations
under this Agreement or the financial condition of the Trustee; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order
which has not been obtained or cannot be obtained prior to the actual
performance by the Trustee of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on the
ability of the Trustee to perform its obligations hereunder.
(End of Article VIII)
ARTICLE IX
TERMINATION; PURCHASE OF ARD LOANS
----------------------------------
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Loans.
-------------------------------------------------------
Subject to Section 9.02, the Trust Fund and the respective obligations
and responsibilities under this Agreement of the Depositor, the Servicer, the
Special Servicer and the Trustee (other than the obligations of the Trustee
to provide for and make payments to Certificateholders as hereafter set
forth) shall terminate upon payment (or provision for payment) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required hereunder to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase by the Mortgage Loan Seller, the Holders
of the Controlling Class or the Servicer of all the Loans and each REO
Property remaining in the Trust Fund at a price equal to (a) the sum of
(1) the aggregate Purchase Price of all the Loans (exclusive of REO Loans)
included in the Trust Fund and (2) the Appraised Value of each REO Property,
if any, included in the Trust Fund (such Appraisals in this clause (a)(2) to
be conducted by an Appraiser selected and mutually agreed upon by the
Servicer and the Trustee, and approved by more than 50% of the Voting Rights
of the Classes of Certificates then outstanding (other than the Controlling
Class if the Controlling Class is exercising such option unless the
Controlling Class is the only Class of Certificates then outstanding)), minus
(b) solely in the case where the Servicer is effecting such purchase, the
aggregate amount of unreimbursed Advances, together with any interest accrued
and payable to the Servicer in respect of such Advances in accordance with
Sections 3.03(d) and 4.03(d) and any unpaid Servicing Fees, remaining
outstanding (which items shall be deemed to have been paid or reimbursed to
the Servicer in connection with such purchase) and (ii) the final payment or
other liquidation (or any advance with respect thereto) of the last Loan or
REO Property remaining in the Trust Fund; provided, however, that in no
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event shall the trust created hereby continue beyond the earlier of (i) the
Rated Final Distribution Date and (ii) expiration of 21 years from the death
of the last survivor of the descendants of Joseph P. Kennedy, the late
ambassador of the United States to the Court of St. James's, living on the
date hereof.
The Mortgage Loan Seller may, at its option, elect to purchase all of
the Loans and each REO Property remaining in the Trust Fund as contemplated
by clause (i) of the preceding paragraph by giving written notice to the
Trustee and the other parties hereto within 60 days of the first Distribution
Date on which the aggregate Stated Principal Balances of the Loans and any
REO Loans remaining in the Trust Fund is less than 3.75% of the aggregate
Cut-off Date Principal Balance of the Loans set forth in the Preliminary
Statement. If the Mortgage Loan Seller does not exercise such option within
60 days after it becomes exercisable, the Holders of a majority of the
Percentage Interests in the Controlling Class can notify the Mortgage Loan
Seller of their intention to exercise such option and if the Mortgage Loan
Seller does not exercise such option within 10 Business Days thereafter, such
Holders of the Controlling Class will be entitled to exercise such option. If
the Holders of a majority of the Percentage Interests of the Controlling
Class do not exercise such option within 60 days after it becomes
exercisable, the Servicer can notify the Mortgage Loan Seller of its
intention to exercise such option and if the Mortgage Loan Seller does not
exercise such option within 10 Business Days thereafter, the Servicer will be
entitled to exercise such option. Any purchaser pursuant to Section 9.01(a)
of a Loan serviced by a Seller-Servicer or GE Capital Loan Services, Inc.
shall be required to enter into a servicing agreement with such
Seller-Servicer or with GE Capital Loan Services, Inc., as applicable, in the
form of the related "Prior Servicing Agreement" (as defined in the
Seller-Servicer Agreement or the GECLS Sub-Servicing Agreement) or shall be
required to pay such Seller-Servicer or GE Capital Loan Services, Inc., as
applicable, the termination fee that would be payable thereunder.
In the event that the Mortgage Loan Seller, the Holders of the
Controlling Class or the Servicer purchases all of the Loans and each REO
Property remaining in the Trust Fund in accordance with the preceding
paragraph, the Mortgage Loan Seller, the Holders of the Controlling Class or
the Servicer, as applicable, shall deposit in the Lower-Tier Distribution
Account not later than the P&I Advance Date relating to the Distribution Date
on which the final distribution on the Certificates is to occur, an amount in
immediately available funds equal to the above-described purchase price
(exclusive of any portion thereof payable to any Person other than the
Certificateholders pursuant to Section 3.05(a), which portion shall be
deposited in the Certificate Account). In addition, the Servicer shall
transfer to the Lower-Tier Distribution Account all amounts required to be
transferred thereto on such P&I Advance Date from the Certificate Account
pursuant to the first paragraph of Section 3.04(b), together with any other
amounts on deposit in the Certificate Account that would otherwise be held
for future distribution. Upon confirmation that such final deposits have
been made, the Trustee shall release or cause to be released to the Mortgage
Loan Seller, the Servicer or the Holders of the Controlling Class, as
applicable, the Mortgage Files for the remaining Loans and shall execute all
assignments, endorsements and other instruments furnished to it by the
Mortgage Loan Seller, the Servicer or the Holders of the Controlling Class,
as applicable, as shall be necessary to effectuate transfer of the Loans and
REO Properties remaining in the Trust Fund and its rights under the Mortgage
Loan Purchase Agreement.
For purposes of this Section 9.01, the Directing Certificateholder, with
the consent of the Holders of the Controlling Class, shall act on behalf of
the Holders of the Controlling Class in purchasing the assets of the Trust
Fund and terminating the Trust.
Notice of any termination pursuant to this Section 9.01 shall be given
promptly by the Trustee by letter to the Certificateholders and each Rating
Agency and, if not previously notified pursuant to this Section 9.01, to the
other parties hereto mailed (a) in the event such notice is given in
connection with the purchase of all of the Loans and each REO Property
remaining in the Trust Fund, not earlier than the 15th day and not later than
the 25th day of the month next preceding the month of the final distribution
on the Certificates, or (b) otherwise during the month of such final
distribution on or before the P&I Advance Determination Date in such month,
in each case specifying (i) the Distribution Date upon which the Trust Fund
will terminate and final payment of the Certificates will be made, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made
only upon presentation and surrender of the Certificates at the offices of
the Certificate Registrar or such other location therein designated.
After transferring the Lower-Tier Distribution Amount and the amount of
any Prepayment Premiums and Yield Maintenance Charges distributable pursuant
to Section 4.01(d) to the Upper-Tier Distribution Account pursuant to
Section 3.04(b) and upon presentation and surrender of the Certificates by
the Certificateholders on the final Distribution Date, the Trustee shall
distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that portion of
the amounts then on deposit in the Upper-Tier Distribution Account that are
allocable to payments on the Class of Certificates so presented and
surrendered. Amounts transferred from the Lower-Tier Distribution Account to
the Upper-Tier Distribution Account as of the final Distribution Date shall
be allocated for the purposes, in the amounts and in accordance with the
priority set forth in Sections 4.01(a) and 4.01(e) and shall be distributed
in termination and liquidation of the Uncertificated Lower-Tier Interests and
the Class LR Certificates in accordance with Sections 4.01(b) and (d). Any
funds not distributed on such Distribution Date shall be set aside and held
uninvested in trust for the benefit of Certificateholders not presenting and
surrendering their Certificates in the aforesaid manner and shall be disposed
of in accordance with this Section 9.01 and Section 4.01(h).
Anything in this Section 9.01 to the contrary notwithstanding, the
holders of the Class V-1 Certificates shall receive that portion of the
proceeds of a sale of the assets of the Trust Fund allocable to accrued and
unpaid Excess Interest.
SECTION 9.02. Additional Termination Requirements.
-----------------------------------
In the event the Mortgage Loan Seller, the Holders of the Controlling
Class or the Servicer purchases all of the Loans and each REO Property
remaining in the Trust Fund as provided in Section 9.01, the Trust Fund shall
be terminated in accordance with the following additional requirements, which
are intended to meet the definition of a "qualified liquidation" in
Section 860F(a)(4) of the Code:
(i) the Servicer shall specify the first day in the 90-day
liquidation period in a statement attached to each of the Upper-Tier
REMIC's and the Lower-Tier REMIC's final Tax Return pursuant to Treasury
regulation Section 1.860F-1 and shall satisfy all requirements of a
qualified liquidation under Section 860F of the Code and any regulations
thereunder;
(ii) during such 90-day liquidation period and at or prior to the
time of the making of the final payment on the Certificates, the Trustee
shall sell all of the assets of the Trust Fund to the Mortgage Loan
Seller, the Holders of the Controlling Class or the Servicer, as
applicable, for cash; and
(iii) immediately following the making of the final payment on the
Uncertificated Lower-Tier Interests and the Certificates, the Trustee
shall distribute or credit, or cause to be distributed or credited, to
the Holders of the Class LR Certificates (in the case of the Lower-Tier
REMIC) and the Class R Certificates (in the case of the Upper-Tier
REMIC) all cash on hand (other than cash retained to meet claims), and
the Trust Fund and each of the Lower-Tier REMIC and the Upper-Tier REMIC
shall terminate at that time.
SECTION 9.03. Purchase of ARD Loans.
---------------------
The Holder of a 100% Percentage Interest in the Class LR Certificates
may purchase any ARD Loan on its Anticipated Repayment Date at a price equal
to the sum of the following:
(i) 100% of the outstanding principal balance of such ARD Loan on
such Anticipated Repayment Date (less any P&I Advances previously made on
account of principal);
(ii) all unpaid interest accrued on such principal balance of such
ARD Loan at the Mortgage Rate thereof, to the last day of the Interest
Accrual Period preceding such Anticipated Repayment Date (less any P&I
Advances previously made on account of interest);
(iii) the aggregate amount of all unreimbursed Advances with respect
to such ARD Loan, with interest thereon at the Advance Rate, and unpaid
Servicing Fees, Special Servicing Fees, Trustee Fees and Trust Fund expenses;
and
(iv) the amount of any expenses incurred by the Trust Fund in
connection with such purchase;
provided, however, that such purchase may be consummated only if the Holder,
- -------- -------
at its expense, provides the Trustee with an opinion of counsel to the
effect that such purchase would not (x) result in a gain which would be
subject to the tax on net income derived from "prohibited transactions"
imposed by Code Section 860F(a)(1) or otherwise result in the imposition of
any other tax on the Lower-Tier REMIC or the Upper-Tier REMIC under the
REMIC Provisions or (y) cause either the Upper-Tier REMIC or the Lower-Tier
REMIC to fail to qualify as a REMIC.
The proceeds of any such purchase hereunder shall be deposited in the
Certificate Account and disbursed as provided herein.
(End of Article IX)
ARTICLE X
MISCELLANEOUS PROVISIONS
------------------------
SECTION 10.01. Amendment.
---------
(a) This Agreement may be amended from time to time by the parties
hereto, without the consent of any of the Certificateholders:
(i) to cure any ambiguity;
(ii) to correct or supplement any provisions herein or therein,
which may be inconsistent with any other provisions herein or therein or
to correct any error;
(iii) to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust
Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC
at all times that any Certificate is outstanding or to avoid or minimize
the risk of the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would
be a claim against the Trust Fund or either the Lower-Tier REMIC or the
Upper-Tier REMIC, provided that the Trustee has received an Opinion of
Counsel to the effect that (a) such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely affect in
any material respect the interests of any Certificateholder, and
(c) such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of
Certificates, as evidenced by a letter from each Rating Agency to such
effect;
(iv) to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account or to
change the name in which the Certificate Account is maintained, provided
that (a) the P&I Advance Date shall in no event be later than the
related Distribution Date, (b) such change shall not, as evidenced by an
Opinion of Counsel addressed to the Trustee, adversely affect in any
material respect the interests of any Certificateholder and (c) such
change shall not result in the withdrawal, downgrade or qualification of
the then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect;
(v) to modify, eliminate or add to the provisions of
Section 5.02(d) or any other provision hereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC "residual
interests," provided that (a) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect, and (b) such change shall not, as
evidenced by an Opinion of Counsel addressed to the Trustee, cause the
Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person;
(vi) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such
action shall not, as evidenced by an Opinion of Counsel addressed to the
Trustee, adversely affect in any material respect the interests of any
Certificateholder not consenting thereto; and
(vii) to amend or supplement any provision hereof to the extent
necessary to maintain the then current rating or ratings assigned to
each Class of Certificates by each Rating Agency as confirmed in
writing.
(b) This Agreement may also be amended from time to time by the parties
hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 662/3% of the Percentage Interests of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Holders of Certificates of
such Class; provided, however, that no such amendment shall:
-------- -------
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate; or
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders of all
Certificates of such Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) amend this Section 10.01.
(c) Notwithstanding the foregoing, the Trustee will not be entitled to
consent to any amendment hereto without having first received an Opinion of
Counsel (at the Trust Fund's expense) to the effect that such amendment or
the exercise of any power granted to the Servicer, the Depositor, the Special
Servicer, the Trustee or any other specified person in accordance with such
amendment will not result in the imposition of a tax on the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC or cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC.
(d) Promptly after the execution of any such amendment, the Trustee
shall furnish a copy of such amendment to each Rating Agency and each
Certificateholder.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 10.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) The Trustee may, but shall not be obligated to, enter into any
amendment pursuant to this Section that affects its rights, duties and
immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 10.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Servicer or the Trustee requests any amendment
of this Agreement in furtherance of the rights and interests of
Certificateholders, the cost of any Opinion of Counsel required in connection
therewith pursuant to Section 10.01(a) or (c) shall be payable out of the
Certificate Account.
SECTION 10.02. Recordation of Agreement; Counterparts.
--------------------------------------
(a) To the extent permitted by applicable law, this Agreement is subject
to recordation in all appropriate public offices for real property records in
all the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Servicer at the expense of the Depositor on direction by the
Trustee, but only upon direction accompanied by an Opinion of Counsel (the
cost of which shall be paid by the Depositor) to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders.
(b) For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts
shall be deemed to be an original, and such counterparts shall constitute but
one and the same instrument.
SECTION 10.03. Limitation on Rights of Certificateholders.
------------------------------------------
(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
to take any action or proceeding in any court for a partition or winding up
of the Trust Fund, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the
operation and management of the Trust Fund, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from
time to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision
hereof.
(c) No Certificateholder shall have any right by virtue of any provision
of this Agreement to institute any suit, action or proceeding in equity or at
law upon or under or with respect to this Agreement or any Loan, unless, with
respect to any suit, action or proceeding upon or under or with respect to
this Agreement, such Holder previously shall have given to the Trustee a
written notice of default hereunder, and of the continuance thereof, as
hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates of any Class evidencing not less
than 25% of the related Percentage Interests in such Class shall have made
written request upon the Trustee to institute such action, suit or proceeding
in its own name as Trustee hereunder and shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. The
Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it hereunder or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of
the Holders of Certificates unless such Holders have offered to the Trustee
reasonable security against the costs, expenses and liabilities which may be
incurred therein or hereby.
It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such
Holder, which priority or preference is not otherwise provided for herein, or
to enforce any right under this Agreement, except in the manner herein
provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of
this Section 10.03(c), each and every Certificateholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
SECTION 10.04. Governing Law.
-------------
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies
of the parties hereunder shall be determined in accordance with such laws.
SECTION 10.05. Notices.
-------
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to
have been duly given if personally delivered at or mailed by registered mail,
postage prepaid (except for notices to the Trustee which shall be deemed to
have been duly given only when received), to: (i) in the case of the
Depositor, Credit Suisse First Boston Mortgage Securities Corp., Eleven
Madison Avenue, New York, New York 10010, Attention: Allan J. Baum, with a
copy to Colleen Graham, Esq., Compliance Department, telecopy number: (212)
325-8162; (ii) in the case of the Servicer, First Union National Bank, First
Union Capital Markets Group, One First Union Center, 301 South College Street
TW-9, Charlotte, North Carolina 28288-1075, Attention: Credit Suisse First
Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates Series 1997-C2, telecopy number: (704) 383-9356; (iii) in the
case of the Special Servicer, Lennar Partners, Inc., Attention: Jeffrey P.
Krasnoff, telecopy number: (305) 226-7691; (iv) in the case of the Trustee,
Norwest Bank Minnesota, National Association, 11000 Broken Land Parkway,
Columbia, Maryland 21044-3562, Attention: Corporate Trust Services (CMBS) -
Credit Suisse First Boston Mortgage Securities Corp., Series 1997-C2,
telecopy number:410-884-2360; (v) in the case of the Rating Agencies,
(a) Fitch Investors Servicer, L.P., One State Street Plaza, New York, New
York 10004, Attention: Commercial Mortgage Monitoring Group, telecopy number:
(212) 908-0500; (b) Moody's Investor Services, 99 Church Street, New York,
New York 10007, Attention: Commercial Mortgage Surveillance Group, telecopy
number: (212) 553-0300; and (c) Standard & Poor's, 26 Broadway, New York,
New York 10004, Attention: Surveillance Manager, telecopy number (212) 412-
0539; and (vi) in the case of the Mortgage Loan Seller, Credit Suisse First
Boston Mortgage Capital L.L.C., Eleven Madison Avenue, New York, New York
10010, Attention: Compliance Department, telecopy number (212) 325-8162; or
as to each such Person such other address as may hereafter be furnished by
such Person to the parties hereto in writing. Any communication required or
permitted to be delivered to a Certificateholder shall be deemed to have been
duly given when mailed first class, postage prepaid, to the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
SECTION 10.06. Severability of Provisions.
--------------------------
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders
thereof.
SECTION 10.07. Grant of a Security Interest.
----------------------------
The Depositor intends that the conveyance of the Depositor's right,
title and interest in and to the Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. If such
conveyance is deemed to be a pledge of security for a loan, however, the
Depositor intends that the rights and obligations of the parties to such loan
shall be established pursuant to the terms of this Agreement. The Depositor
also intends and agrees that, in such event, (i) the Depositor shall be
deemed to have granted to the Trustee (in such capacity) a first priority
security interest in the Depositor's entire right, title and interest in and
to the assets comprising the Trust Fund, including without limitation, the
Loans, all principal and interest received or receivable with respect to the
Loans (other than principal and interest payments due and payable prior to
the Cut-off Date and Principal Prepayments received prior to the Cut-off
Date), all amounts held from time to time in the Certificate Account, the
Distribution Accounts and, if established, the REO Account, and all
reinvestment earnings on such amounts, and all of the Depositor's right,
title and interest in and to the proceeds of any title, hazard or other
Insurance Policies related to such Loans and (ii) this Agreement shall
constitute a security agreement under applicable law. This Section 10.07
shall constitute notice to the Trustee pursuant to any of the requirements of
the applicable UCC.
SECTION 10.08. Successors and Assigns; Beneficiaries.
-------------------------------------
The provisions of this Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. No
other person, including, without limitation, any Mortgagor, shall be entitled
to any benefit or equitable right, remedy or claim under this Agreement.
SECTION 10.09. Article and Section Headings.
----------------------------
The article and section headings herein are for convenience of reference
only, and shall not limit or otherwise affect the meaning hereof.
SECTION 10.10. Notices.
-------
(a) The Trustee shall use reasonable efforts promptly to provide notice
to each Rating Agency with respect to each of the following of which a
Responsible Officer of the Trustee has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been
cured;
(iii) the resignation or termination of the Servicer or the Special
Servicer;
(iv) any change in the location of either of the Distribution
Accounts;
(v) the repurchase of Loans by the Mortgage Loan Seller pursuant
to Section 7 of the Mortgage Loan Purchase Agreement; and
(vi) the final payment to any Class of Certificateholders.
(b) The Servicer shall use reasonable efforts promptly to provide notice
to each Rating Agency with respect to each of the following of which it has
actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of the Certificate Account; and
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee.
(c) Each of the Servicer and the Special Servicer shall promptly furnish
to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.13;
(ii) all reports and other items for Significant Loans delivered by
each of the Servicer and Special Servicer pursuant to Section 3.12;
(iii) each of its annual independent public accountants' servicing
reports described in Section 3.14; and
(iv) each waiver and consent provided pursuant to Section 3.08 for
Significant Loans.
(d) The Trustee shall promptly after each Distribution Date furnish to
each Rating Agency a copy of the related Distribution Date Statement.
(e) Each Rating Agency shall provide to the Trustee, upon its request, a
listing of the then current ratings on any Certificate then outstanding.
(End of Article X)
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Depositor
By: /s/ Allan J. Baum
-------------------------------------
Name: Allan J. Baum
Title: Vice President
FIRST UNION NATIONAL BANK
Servicer
By: /s/ Timothy S. Ryan
------------------------------------
Name: Timothy S. Ryan
Title: Vice President
LENNAR PARTNERS, INC.
Special Servicer
By: /s/ Ronald E. Schrager
------------------------------------
Name: Ronald E. Schrager
Title: Vice President
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Trustee
By: /s/ Ronald M. Feldman
------------------------------------
Name: Ronald M. Feldman
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 19th day of December, 1997 before me, a notary public in and for
said State, personally appeared Allan J. Baum known to me to be a Vice
President of Credit Suisse First Boston Mortgage Securities Corp. one of the
corporations that executed the within instrument, and also known to me to be
the person who executed it on behalf of such corporation, and acknowledged to
me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ James M. Wulffleff
---------------------------------
Notary Public
(Notarial Seal)
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 19th day of December, 1997 before me, a notary public in and for
said State, personally appeared Ronald M. Feldman known to me to be a Vice
President of Norwest Bank Minnesota, National Association, a national banking
association that executed the within instrument, and also known to me to be
the person who executed it on behalf of such banking corporation, and
acknowledged to me that such banking corporation executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ James M. Wulffleff
--------------------------------
Notary Public
(Notarial Seal)
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 19th day of December, 1997 before me, a notary public in and for
said State, personally appeared Timothy S. Ryan known to me to be a Vice
President of First Union National Bank, a national banking association that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such national banking association, and acknowledged
to me that such national banking association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ James M. Wulffleff
--------------------------------
Notary Public
(Notarial Seal)
STATE OF FLORIDA )
) ss.:
COUNTY OF DADE )
On the 19th day of December, 1997 before me, a notary public in and for
said State, personally appeared Ronald E. Schrager known to me to be a
Vice President of Lennar Partners, Inc., one of the corporations that executed
the within instrument, and also known to me to be the person who executed it
on behalf of such corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Victoria M. Taylor
--------------------------------
Notary Public
(Notarial Seal)
EXHIBIT A-1
FORM OF CLASS A CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-C2, CLASS A-(1)(2)(3)
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON
THE CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO
THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS
CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Certificate
Registrar for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: % AGGREGATE SCHEDULED PRINCIPAL BALANCE
OF THE LOANS AFTER DEDUCTING PAYMENTS
DENOMINATION: $ DUE AND PREPAYMENTS RECEIVED ON OR
BEFORE THE CUT-OFF DATE:
$______________
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 11, 1997 SERVICER: FIRST UNION NATIONAL BANK
CUT-OFF DATE: DECEMBER 11, 1997 SPECIAL SERVICER: LENNAR PARTNERS,
INC.
CLOSING DATE: DECEMBER 19, 1997
TRUSTEE: NORWEST BANK MINNESOTA,
FIRST DISTRIBUTION DATE: NATIONAL ASSOCIATION
JANUARY 20, 1998
CUSIP NO. 22540A
AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.:
OF THE CLASS A-(1)(2)(3)
CERTIFICATES
AS OF THE CLOSING DATE: $
THIS CLASS A-(1)(2)(3) CERTIFICATE evidences a beneficial ownership interest
in a trust fund, consisting primarily of (i) a pool of commercial and
multifamily mortgage loans (the "Loans"), all interest and principal received
or receivable on or with respect to the Loans (other than payments of
principal and interest due and payable on the Loans on or before the Cut-off
Date and payments of principal and interest due and payable on the Loans
after the Cut-off Date and paid on or before the Cut-off Date), together with
all documents included in the related Mortgage Files; (ii) such funds or
assets as from time to time are deposited in the Certificate Account, the
Distribution Accounts, the Excess Interest Distribution Account, the Interest
Reserve Account, any Servicing Accounts, and, if established, the REO
Account; (iii) any REO Property; (iv) the rights of the mortgagee under all
Insurance Policies with respect to the Loans, (v) the rights of the Depositor
under the Mortgage Loan Purchase Agreement and (vi) Yield Protection Payment
Advances (collectively, the "Trust Fund"), formed and sold by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF
THE UNITED STATES.
THIS CERTIFIES THAT ______
is the registered owner of the interest evidenced by this Certificate in the
Class A-(1)(2)(3) Certificates issued by the Trust Fund created pursuant to
the Pooling and Servicing Agreement, dated as of December 11, 1997 (the
"Pooling and Servicing Agreement"), among Credit Suisse First Boston Mortgage
Securities Corp. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Special Servicer and the Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To
the extent not defined herein, the capitalized terms used herein shall have
the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as
a percentage obtained by dividing the Denomination of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of
the Class A-(1)(2)(3) Certificates. The Certificates are designated as the
Credit Suisse First Boston Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates, Series 1997-C2 and are issued in sixteen Classes
as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the
Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, as amended
from time to time, to which the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of
any conflict between terms specified in this Certificate and terms specified
in the Pooling and Servicing Agreement, the terms of the Pooling and
Servicing Agreement shall govern.
This Certificate (other than any interest represented by this
Certificate in Yield Protection Payments) is a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined,
respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of
1986, as amended. Each Holder of this Certificate, by acceptance hereof,
agrees to treat, and take no action inconsistent with the treatment of, this
Certificate in accordance with the preceding sentence for purposes of federal
income taxes, state and local income and franchise taxes and other taxes
imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and
interest then distributable, if any, allocable to the Class of Certificates
of the same Class as this Certificate for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums, Yield Maintenance Charges
and Yield Protection Payments, as provided in the Pooling and Servicing
Agreement. All sums distributable on this Certificate are payable in the
coin or currency of the United States of America as at the time of payment is
legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class
A-(1)(2)(3) Pass-Through Rate specified above on the Certificate Balance of
this Certificate immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of
this Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest
on the Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. The
Certificate Account and the Distribution Accounts will be held in the name of
the Servicer and Trustee, respectively, on behalf of the Certificateholders,
and the Servicer (with respect to the Certificate Account) or the Trustee
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other net income earned on
funds in the Certificate Account will be paid to the Servicer and withdrawals
from the Certificate Account shall be made from time to time for purposes
other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of
the Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, if such Certificateholder (1) has provided the
Trustee with wire instructions in writing at least five Business Days prior
to the related Record Date and (2) is the registered owner of Certificates
with an original Certificate Balance or Notional Balance, as applicable, of
at least $5,000,000, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other
location specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to
receive the final distribution with respect thereto. If within one year
after the second notice not all of such Certificates shall have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. No interest shall accrue
or be payable to any Certificateholder on any amount held in trust as a
result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 4.01(h) of the Pooling
and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, and subject to
certain limitations set forth therein, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this
Certificate for registration of transfer at the office of the Certificate
Registrar or at the office of its transfer agent, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by
the Holder hereof or such Holder's attorney-in-fact duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-(1)(2)(3) Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance and in integral multiples of $1,000 in excess thereof.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to
the contrary.
The Pooling and Servicing Agreement may be amended by the parties
thereto, without the consent of any of the Holders of Certificates (i) to
cure any ambiguity, (ii) to correct or supplement any provision therein which
may be inconsistent with any other provision therein or with the Prospectus
Supplement or the Prospectus or to correct any error, (iii) to change the
timing and/or nature of deposits in the Certificate Account, the Distribution
Accounts or the REO Account, provided that (A) the P&I Advance Date shall not
be later than the related Distribution Date, (B) such change would not
adversely affect in any material respect the interests of any
Certificateholder, as evidenced by an opinion of counsel (at the expense of
the party requesting the amendment) and (C) such change would not result in
the downgrading, qualification or withdrawal of the then current ratings
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from each Rating Agency to such effect, (iv) to modify, eliminate or
add to any of its provisions (A) to such extent as shall be necessary to
maintain the qualification of the Trust Fund (or either the Upper-Tier REMIC
or Lower-Tier REMIC) as a REMIC or to avoid or minimize the risk of
imposition of any tax on the Trust Fund, provided that the Trustee has
received an opinion of counsel (at the expense of the party requesting the
amendment) to the effect that (1) such action is necessary or desirable to
maintain such qualification or to avoid or minimize such risk and (2) such
action will not adversely affect in any material respect the interests of any
holder of the Certificates or (B) to restrict the transfer of the Residual
Certificates, provided that the Depositor has determined that the
then-current ratings of any Class of the Certificates will not be downgraded,
qualified or withdrawn, as evidenced by a letter from each Rating Agency to
such effect, and that any such amendment will not give rise to a federal tax
with respect to the transfer of the Residual Certificates to a non-permitted
transferee, (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement or any other
change, provided that such action will not adversely affect in any material
respect the interests of any Certificateholder or (vi) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary
to maintain the then current ratings assigned to each Class of Certificates
by each Rating Agency as confirmed in writing.
The Pooling and Servicing Agreement may also be amended by the
parties thereto with the consent of the Holders of Certificates of each Class
affected thereby evidencing, in each case, not less than 66-2/3% of the
aggregate Percentage Interests constituting such Class for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Holders of the Certificates, except that no such
amendment may (i) reduce in any manner the amount of, or delay the timing of,
payments received on the Loans which are required to be distributed on a
Certificate of any Class without the consent of the Holder of such
Certificate, (ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such amendment
without the consent of the Holders of all Certificates of such Class then
outstanding, (iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding, amend the section of the Pooling and Servicing
Agreement that relates to the provisions described in this paragraph.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without
having first received an opinion of counsel to the effect that such amendment
or the exercise of any power granted to the Servicer, the Special Servicer,
the Depositor, the Trustee or any other specified person in accordance with
such amendment will not result in the imposition of a tax on the REMIC
constituted by the Trust Fund or cause the Trust Fund (or either the
Upper-Tier REMIC or Lower-Tier REMIC) to fail to qualify as a REMIC.
The Mortgage Loan Seller may, at its option, elect to purchase all
of the Loans and each REO Property remaining in the Trust Fund by giving
written notice to the Trustee and the other parties hereto within 60 days of
the first Distribution Date on which the aggregate Stated Principal Balances
of the Loans and any REO Loans remaining in the Trust Fund is less than 3.75%
of the aggregate Cut-off Date Principal Balance of the Loans set forth in the
Preliminary Statement to the Pooling and Servicing Agreement. If the
Mortgage Loan Seller does not exercise such option within 60 days after it
becomes exercisable, the Holders of a majority of the Percentage Interests in
the Controlling Class can notify the Mortgage Loan Seller of their intention
to exercise such option and if the Mortgage Loan Seller does not exercise
such option within 10 Business Days thereafter, such Holders of the
Controlling Class will be entitled to exercise such option. If the Holders of
a majority of the Percentage Interests of the Controlling Class do not
exercise such option within 60 days after it becomes exercisable, Servicer
can notify the Mortgage Loan Seller of its intention to exercise such option
and if the Mortgage Loan Seller does not exercise such option within 10
Business Days thereafter, the Servicer will be entitled to exercise such
option.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and
Servicing Agreement), shall terminate upon payment (or provision for payment)
to the Certificateholders of all amounts held by or on behalf of the Trustee
and required hereunder to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase by the Mortgage Loan Seller, the Holders
of the Controlling Class or the Servicer of all the Loans and each REO
Property remaining in the Trust Fund and (ii) the final payment or other
liquidation (or any advance with respect thereto) of the last Loan or REO
Property remaining in the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of Joseph
P. Kennedy, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the
Certificates or the Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-(1)(2)(3) CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
Authenticating Agent
By: ___________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT
TEN ENT - as tenants by the
entireties ___________ Custodian under
JT TEN - as joint tenants with (Cust)
rights of survivorship and
not as tenants in common Uniform Gifts to Minors Act
__________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint
to transfer the said Certificate in the Certificate register of the
within-named Trust, with full power of substitution in the premises.
___________________________________
Dated: ____________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every
particular without alteration or
enlargement or any change whatever.
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by
a member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to __________________________________ for the
account of __________________________________ account number _______________
or, if mailed by check, to _______________________________________.
Statements should be mailed to
_______________________________________________________________. This
information is provided by assignee named above, or
______________________________, as its agent.
EXHIBIT A-2
(RESERVED)
EXHIBIT A-3
FORM OF CLASS A-X CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-C2, CLASS A-X
THE NOTIONAL BALANCE ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE
CLASS A-X CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL
PAYMENTS AND LOSSES ON THE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT
TO THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Certificate
Registrar for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
THE FOLLOWING INFORMATION IS PROVIDED FOR PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON DECEMBER __, 1997, WITH AN INITIAL COUPON RATE
EFFECTIVELY CONSISTING OF THE RIGHT TO INTEREST AT THE WEIGHTED AVERAGE NET
MORTGAGE RATE IN EXCESS OF THE VARIOUS COUPON RATES APPLICABLE TO THE OTHER
CLASSES OF CERTIFICATES OTHER THAN THE CLASS R, CLASS LR AND CLASS V-1
CERTIFICATES. THIS CERTIFICATE HAS BEEN ISSUED WITH $____________ OF OID PER
$100,000 OF INITIAL NOTIONAL BALANCE, THE MONTHLY YIELD TO MATURITY EXPRESSED
ON AN ANNUAL BASIS IS _____% AND THE AMOUNT OF OID ATTRIBUTABLE TO THE
INITIAL SHORT ACCRUAL PERIOD IF $______ PER $100,000 OF INITIAL NOTIONAL
BALANCE, COMPUTED BY ACCRUING YIELD DURING THE INITIAL PERIOD ON THE BASIS OF
DAILY COMPOUNDING AND ASSUMING THAT THE UNDERLYING LOANS WILL PREPAY AT 0%
CPR AND THAT THE ARD LOANS WILL PREPAY IN FULL ON THEIR ANTICIPATED REPAYMENT
DATE.
PASS-THROUGH RATE: Variable AGGREGATE SCHEDULED PRINCIPAL BALANCE
OF THE LOANS AFTER DEDUCTING PAYMENTS
DENOMINATION: $_____________ DUE AND PREPAYMENTS RECEIVED ON OR
BEFORE THE CUT-OFF DATE: $_____________
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 11, SERVICER: FIRST UNION NATIONAL
1997 BANK
CUT-OFF DATE: DECEMBER 11, 1997 SPECIAL SERVICER: LENNAR PARTNERS,
CLOSING DATE: DECEMBER 19, 1997 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE:
JANUARY 20, 1998 CUSIP NO. 22540A _____
AGGREGATE NOTIONAL BALANCE CERTIFICATE NO.: __
OF THE CLASS A-X CERTIFICATES
AS OF THE CLOSING DATE:
$_____________
THIS CLASS A-X CERTIFICATE evidences a beneficial ownership interest in a
trust fund, consisting primarily of (i) a pool of commercial and multifamily
mortgage loans (the "Loans"), all interest and principal received or
receivable on or with respect to the Loans (other than payments of principal
and interest due and payable on the Loans on or before the Cut-off Date and
payments of principal and interest due and payable on the Loans after the
Cut-off Date and paid on or before the Cut-off Date), together with all
documents included in the related Mortgage Files; (ii) such funds or assets
as from time to time are deposited in the Certificate Account, the
Distribution Accounts, the Excess Interest Distribution Account, the Interest
Reserve Account, any Servicing Accounts, and, if established, the REO
Account; (iii) any REO Property; (iv) the rights of the mortgagee under all
Insurance Policies with respect to the Loans, (v) the rights of the Depositor
under the Mortgage Loan Purchase Agreement and (vi) Yield Protection Payment
Advances (collectively, the "Trust Fund"), formed and sold by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF
THE UNITED STATES.
THIS CERTIFIES THAT ________
is the registered owner of the interest evidenced by this Certificate in the
Class A-X Certificates issued by the Trust Fund created pursuant to the
Pooling and Servicing Agreement, dated as of December 11, 1997 (the "Pooling
and Servicing Agreement"), among Credit Suisse First Boston Mortgage
Securities Corp. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Special Servicer and the Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To
the extent not defined herein, the capitalized terms used herein shall have
the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as
a percentage obtained by dividing the Denomination of this Certificate
specified on the face hereof by the aggregate initial Notional Balance of the
Class A-X Certificates. The Certificates are designated as the Credit Suisse
First Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through
Certificates, Series 1997-C2 and are issued in sixteen Classes as
specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the
Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, as amended
from time to time, to which the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of
any conflict between terms specified in this Certificate and terms specified
in the Pooling and Servicing Agreement, the terms of the Pooling and
Servicing Agreement shall govern.
This Certificate (other than any interest represented by this
Certificate in Yield Protection Payments) is a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined,
respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of
1986, as amended. Each Holder of this Certificate, by acceptance hereof,
agrees to treat, and take no action inconsistent with the treatment of, this
Certificate in accordance with the preceding sentence for purposes of federal
income taxes, state and local income and franchise taxes and other taxes
imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of interest then
distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this
Certificate will not be entitled to distributions in respect of principal.
Holders of this Certificate may be entitled to Prepayment Premiums, Yield
Maintenance Charges and Yield Protection Payments, as provided in the Pooling
and Servicing Agreement. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class A-X
Pass-Through Rate. The Class A-X Pass-Through Rate shall be equal to the
Weighted Average Net Mortgage Rate. Interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro
rata share of the sum of the Available Distribution Amount to be distributed
on the Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in
the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. The
Certificate Account and the Distribution Accounts will be held in the name of
the Servicer and Trustee, respectively, on behalf of the Certificateholders,
and the Servicer (with respect to the Certificate Account) or the Trustee
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other net income earned on
funds in the Certificate Account will be paid to the Servicer and withdrawals
from the Certificate Account shall be made from time to time for purposes
other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of
the Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, if such Certificateholder (1) has provided the
Trustee with wire instructions in writing at least five Business Days prior
to the related Record Date and (2) is the registered owner of Certificates
with an original Certificate Balance or Notional Balance, as applicable, of
at least $5,000,000, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other
location specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the final Distribution Date because of the
failure of Certificateholders to tender their Certificates shall be set aside
and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to
receive the final distribution with respect thereto. If within one year
after the second notice not all of such Certificates shall have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. No interest shall accrue
or be payable to any Certificateholder on any amount held in trust as a
result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 4.01(h) of the Pooling
and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, and subject to
certain limitations set forth therein, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this
Certificate for registration of transfer at the office of the Certificate
Registrar or at the office of its transfer agent, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by
the Holder hereof or such Holder's attorney-in-fact duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class A-X Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $100,000 initial Notional
Balance and in integral multiples of $10,000 in excess thereof. If the
Notional Balance of the Class A-X Certificates does not equal an integral
multiple of $10,000, then a single additional Class A-X Certificate may be
issued in a minimum denomination of authorized initial Notional Balance that
includes the excess of (i) the initial Notional Balance of Class A-X over
(ii) the largest integral multiple of $10,000 that does not exceed such
amount.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to
the contrary.
The Pooling and Servicing Agreement may be amended by the parties
thereto, without the consent of any of the Holders of Certificates (i) to
cure any ambiguity, (ii) to correct or supplement any provision therein which
may be inconsistent with any other provision therein or with the Prospectus
Supplement or the Prospectus or to correct any error, (iii) to change the
timing and/or nature of deposits in the Certificate Account, the Distribution
Accounts or the REO Account, provided that (A) the P&I Advance Date shall not
be later than the related Distribution Date, (B) such change would not
adversely affect in any material respect the interests of any
Certificateholder, as evidenced by an opinion of counsel (at the expense of
the party requesting the amendment) and (C) such change would not result in
the downgrading, qualification or withdrawal of the then current ratings
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from each Rating Agency to such effect, (iv) to modify, eliminate or
add to any of its provisions (A) to such extent as shall be necessary to
maintain the qualification of the Trust Fund (or either the Upper-Tier REMIC
or Lower-Tier REMIC) as a REMIC or to avoid or minimize the risk of
imposition of any tax on the Trust Fund, provided that the Trustee has
received an opinion of counsel (at the expense of the party requesting the
amendment) to the effect that (1) such action is necessary or desirable to
maintain such qualification or to avoid or minimize such risk and (2) such
action will not adversely affect in any material respect the interests of any
holder of the Certificates or (B) to restrict the transfer of the Residual
Certificates, provided that the Depositor has determined that the
then-current ratings of any Class of the Certificates will not be downgraded,
qualified or withdrawn, as evidenced by a letter from each Rating Agency to
such effect, and that any such amendment will not give rise to a federal tax
with respect to the transfer of the Residual Certificates to a non-permitted
transferee, (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement or any other
change, provided that such action will not adversely affect in any material
respect the interests of any Certificateholder or (vi) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary
to maintain the then current ratings assigned to each Class of Certificates
by each Rating Agency as confirmed in writing.
The Pooling and Servicing Agreement may also be amended by the
parties thereto with the consent of the Holders of Certificates of each Class
affected thereby evidencing, in each case, not less than 66-2/3% of the
aggregate Percentage Interests constituting such Class for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Holders of the Certificates, except that no such
amendment may (i) reduce in any manner the amount of, or delay the timing of,
payments received on the Loans which are required to be distributed on a
Certificate of any Class without the consent of the Holder of such
Certificate, (ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such amendment
without the consent of the Holders of all Certificates of such Class then
outstanding, (iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding, amend the section of the Pooling and Servicing
Agreement that relates to the provisions described in this paragraph.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without
having first received an opinion of counsel to the effect that such amendment
or the exercise of any power granted to the Servicer, the Special Servicer,
the Depositor, the Trustee or any other specified person in accordance with
such amendment will not result in the imposition of a tax on the REMIC
constituted by the Trust Fund or cause the Trust Fund (or either the
Upper-Tier REMIC or Lower-Tier REMIC) to fail to qualify as a REMIC.
The Mortgage Loan Seller may, at its option, elect to purchase all
of the Loans and each REO Property remaining in the Trust Fund by giving
written notice to the Trustee and the other parties hereto within 60 days of
the first Distribution Date on which the aggregate Stated Principal Balances
of the Loans and any REO Loans remaining in the Trust Fund is less than 3.75%
of the aggregate Cut-off Date Principal Balance of the Loans set forth in the
Preliminary Statement to the Pooling and Servicing Agreement. If the
Mortgage Loan Seller does not exercise such option within 60 days after it
becomes exercisable, the Holders of a majority of the Percentage Interests in
the Controlling Class can notify the Mortgage Loan Seller of their intention
to exercise such option and if the Mortgage Loan Seller does not exercise
such option within 10 Business Days thereafter, such Holders of the
Controlling Class will be entitled to exercise such option. If the Holders of
a majority of the Percentage Interests of the Controlling Class do not
exercise such option within 60 days after it becomes exercisable, Servicer
can notify the Mortgage Loan Seller of its intention to exercise such option
and if the Mortgage Loan Seller does not exercise such option within 10
Business Days thereafter, the Servicer will be entitled to exercise such
option.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and
Servicing Agreement), shall terminate upon payment (or provision for payment)
to the Certificateholders of all amounts held by or on behalf of the Trustee
and required hereunder to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase by the Mortgage Loan Seller, the Holders
of the Controlling Class or the Servicer of all the Loans and each REO
Property remaining in the Trust Fund and (ii) the final payment or other
liquidation (or any advance with respect thereto) of the last Loan or REO
Property remaining in the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of Joseph
P. Kennedy, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the
Certificates or the Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated:
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
Authenticating Agent
By: ___________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT
TEN ENT - as tenants by the
entireties ___________ Custodian under
JT TEN - as joint tenants with (Cust)
rights of survivorship
and not as tenants in Uniform Gifts to Minors Act
common
__________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint
to transfer the said Certificate in the Certificate register of the
within-named Trust, with full power of substitution in the premises.
_____________________________________
Dated: _________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every
particular without alteration or
enlargement or any change whatever.
________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by
a member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
__________________________________________________ for the account of
__________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements
should be mailed to __________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-4
FORM OF FIXED RATE MEZZANINE CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-C2, CLASS (B)(C)(D)(E)
THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES
OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION
OF PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Certificate
Registrar for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF
THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS
DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN OWNERSHIP AND TRANSFER
REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING AGREEMENT.
PASS-THROUGH RATE: % AGGREGATE SCHEDULED PRINCIPAL BALANCE
OF THE LOANS AFTER DEDUCTING PAYMENTS
DENOMINATION: $_____________ DUE AND PREPAYMENTS RECEIVED ON OR
BEFORE THE CUT-OFF DATE: $__________
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 11,
1997
SERVICER: FIRST UNION NATIONAL BANK
CUT-OFF DATE: DECEMBER 11,
1997
SPECIAL SERVICER: LENNAR PARTNERS,
CLOSING DATE: DECEMBER 19, INC.
1997
FIRST DISTRIBUTION DATE: TRUSTEE: NORWEST BANK MINNESOTA,
JANUARY 20, 1998 NATIONAL ASSOCIATION
AGGREGATE CERTIFICATE BALANCE CUSIP NO. 22540A
OF THE CLASS (B)(C)(D)(E)
CERTIFICATES AS OF THE CLOSING CERTIFICATE NO.: __
DATE: $_________
$
THIS CLASS (B)(C)(D)(E) CERTIFICATE evidences a beneficial ownership interest
in a trust fund, consisting primarily of (i) a pool of commercial and
multifamily mortgage loans (the "Loans"), all interest and principal received
or receivable on or with respect to the Loans (other than payments of
principal and interest due and payable on the Loans on or before the Cut-off
Date and payments of principal and interest due and payable on the Loans
after the Cut-off Date and paid on or before the Cut-off Date), together with
all documents included in the related Mortgage Files; (ii) such funds or
assets as from time to time are deposited in the Certificate Account, the
Distribution Accounts, the Excess Interest Distribution Account, the Interest
Reserve Account, any Servicing Accounts, and, if established, the REO
Account; (iii) any REO Property; (iv) the rights of the mortgagee under all
Insurance Policies with respect to the Loans, (v) the rights of the Depositor
under the Mortgage Loan Purchase Agreement and (vi) Yield Protection Payment
Advances (collectively, the "Trust Fund"), formed and sold by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF
THE UNITED STATES.
THIS CERTIFIES THAT ________
is the registered owner of the interest evidenced by this Certificate in the
Class (B)(C)(D)(E) Certificates issued by the Trust Fund created pursuant to
the Pooling and Servicing Agreement, dated as of December 11, 1997 (the
"Pooling and Servicing Agreement"), among Credit Suisse First Boston Mortgage
Securities Corp. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Special Servicer and the Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To
the extent not defined herein, the capitalized terms used herein shall have
the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as
a percentage obtained by dividing the Denomination of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of
the Class (B)(C)(D)(E) Certificates. The Certificates are designated as the
Credit Suisse First Boston Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates, Series 1997-C2 and are issued in sixteen Classes
as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the
Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, as amended
from time to time, to which the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of
any conflict between terms specified in this Certificate and terms specified
in the Pooling and Servicing Agreement, the terms of the Pooling and
Servicing Agreement shall govern.
This Certificate (other than any interest represented by this
Certificate in Yield Protection Payments) is a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined,
respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of
1986, as amended. Each Holder of this Certificate, by acceptance hereof,
agrees to treat, and take no action inconsistent with the treatment of, this
Certificate in accordance with the preceding sentence for purposes of federal
income taxes, state and local income and franchise taxes and other taxes
imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and
interest then distributable, if any, allocable to the Class of Certificates
of the same Class as this Certificate for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums, Yield Maintenance Charges
and Yield Protection Payments, as provided in the Pooling and Servicing
Agreement. All sums distributable on this Certificate are payable in the
coin or currency of the United States of America as at the time of payment is
legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class
(B)(C)(D)(E) Pass-Through Rate specified above on the Certificate Balance of
this Certificate immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the sum of the Available
Distribution Amount to be distributed on the Certificates of this Class as of
such Distribution Date, with a final distribution to be made upon retirement
of this Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest
on the Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. The
Certificate Account and the Distribution Accounts will be held in the name of
the Servicer and Trustee, respectively, on behalf of the Certificateholders,
and the Servicer (with respect to the Certificate Account) or the Trustee
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other net income earned on
funds in the Certificate Account will be paid to the Servicer and withdrawals
from the Certificate Account shall be made from time to time for purposes
other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of
the Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, if such Certificateholder (1) has provided the
Trustee with wire instructions in writing at least five Business Days prior
to the related Record Date and (2) is the registered owner of Certificates
with an original Certificate Balance or Notional Balance, as applicable, of
at least $5,000,000, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other
location specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to
receive the final distribution with respect thereto. If within one year
after the second notice not all of such Certificates shall have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. No interest shall accrue
or be payable to any Certificateholder on any amount held in trust as a
result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 4.01(h) of the Pooling
and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, and subject to
certain limitations set forth therein, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this
Certificate for registration of transfer at the office of the Certificate
Registrar or at the office of its transfer agent, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by
the Holder hereof or such Holder's attorney-in-fact duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class (B)(C)(D)(E) Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance and in integral multiples of $1,000 in excess thereof.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to
the contrary.
The Pooling and Servicing Agreement may be amended by the parties
thereto, without the consent of any of the Holders of Certificates (i) to
cure any ambiguity, (ii) to correct or supplement any provision therein which
may be inconsistent with any other provision therein or with the Prospectus
Supplement or the Prospectus or to correct any error, (iii) to change the
timing and/or nature of deposits in the Certificate Account, the Distribution
Accounts or the REO Account, provided that (A) the P&I Advance Date shall not
be later than the related Distribution Date, (B) such change would not
adversely affect in any material respect the interests of any
Certificateholder, as evidenced by an opinion of counsel (at the expense of
the party requesting the amendment) and (C) such change would not result in
the downgrading, qualification or withdrawal of the then current ratings
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from each Rating Agency to such effect, (iv) to modify, eliminate or
add to any of its provisions (A) to such extent as shall be necessary to
maintain the qualification of the Trust Fund (or either the Upper-Tier REMIC
or Lower-Tier REMIC) as a REMIC or to avoid or minimize the risk of
imposition of any tax on the Trust Fund, provided that the Trustee has
received an opinion of counsel (at the expense of the party requesting the
amendment) to the effect that (1) such action is necessary or desirable to
maintain such qualification or to avoid or minimize such risk and (2) such
action will not adversely affect in any material respect the interests of any
holder of the Certificates or (B) to restrict the transfer of the Residual
Certificates, provided that the Depositor has determined that the
then-current ratings of any Class of the Certificates will not be downgraded,
qualified or withdrawn, as evidenced by a letter from each Rating Agency to
such effect, and that any such amendment will not give rise to a federal tax
with respect to the transfer of the Residual Certificates to a non-permitted
transferee, (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement or any other
change, provided that such action will not adversely affect in any material
respect the interests of any Certificateholder or (vi) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary
to maintain the then current ratings assigned to each Class of Certificates
by each Rating Agency as confirmed in writing.
The Pooling and Servicing Agreement may also be amended by the
parties thereto with the consent of the Holders of Certificates of each Class
affected thereby evidencing, in each case, not less than 66-2/3% of the
aggregate Percentage Interests constituting such Class for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Holders of the Certificates, except that no such
amendment may (i) reduce in any manner the amount of, or delay the timing of,
payments received on the Loans which are required to be distributed on a
Certificate of any Class without the consent of the Holder of such
Certificate, (ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such amendment
without the consent of the Holders of all Certificates of such Class then
outstanding, (iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding, amend the section of the Pooling and Servicing
Agreement that relates to the provisions described in this paragraph.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without
having first received an opinion of counsel to the effect that such amendment
or the exercise of any power granted to the Servicer, the Special Servicer,
the Depositor, the Trustee or any other specified person in accordance with
such amendment will not result in the imposition of a tax on the REMIC
constituted by the Trust Fund or cause the Trust Fund (or either the
Upper-Tier REMIC or Lower-Tier REMIC) to fail to qualify as a REMIC.
The Mortgage Loan Seller may, at its option, elect to purchase all
of the Loans and each REO Property remaining in the Trust Fund by giving
written notice to the Trustee and the other parties hereto within 60 days of
the first Distribution Date on which the aggregate Stated Principal Balances
of the Loans and any REO Loans remaining in the Trust Fund is less than 3.75%
of the aggregate Cut-off Date Principal Balance of the Loans set forth in the
Preliminary Statement to the Pooling and Servicing Agreement. If the
Mortgage Loan Seller does not exercise such option within 60 days after it
becomes exercisable, the Holders of a majority of the Percentage Interests in
the Controlling Class can notify the Mortgage Loan Seller of their intention
to exercise such option and if the Mortgage Loan Seller does not exercise
such option within 10 Business Days thereafter, such Holders of the
Controlling Class will be entitled to exercise such option. If the Holders of
a majority of the Percentage Interests of the Controlling Class do not
exercise such option within 60 days after it becomes exercisable, Servicer
can notify the Mortgage Loan Seller of its intention to exercise such option
and if the Mortgage Loan Seller does not exercise such option within 10
Business Days thereafter, the Servicer will be entitled to exercise such
option.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and
Servicing Agreement), shall terminate upon payment (or provision for payment)
to the Certificateholders of all amounts held by or on behalf of the Trustee
and required hereunder to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase by the Mortgage Loan Seller, the Holders
of the Controlling Class or the Servicer of all the Loans and each REO
Property remaining in the Trust Fund and (ii) the final payment or other
liquidation (or any advance with respect thereto) of the last Loan or REO
Property remaining in the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of Joseph
P. Kennedy, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the
Certificates or the Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated: ________________________
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS (B)(C)(D)(E) CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
Authenticating Agent
By: ___________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT
TEN ENT - as tenants by the
entireties ___________ Custodian under
JT TEN - as joint tenants with (Cust)
rights of survivorship and
not as tenants in common Uniform Gifts to Minors Act
__________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint
to transfer the said Certificate in the Certificate register of the
within-named Trust, with full power of substitution in the premises.
Dated: ___________________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every
particular without alteration or
enlargement or any change whatever.
____________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by
a member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ______________________________________________
for the account of __________________________________ account number
_______________ or, if mailed by check, to
_______________________________________. Statements should be mailed to
_______________________________________________________________. This
information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-5
FORM OF ADJUSTABLE RATE CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-C2, CLASS (F)(G)(H)(I)(J)
THIS CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES
OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION
OF PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
(With respect to the Class F and Class G Certificates only: Unless this
certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to the Certificate Registrar
for registration of transfer, exchange or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested
by an authorized representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein.)
THE FOLLOWING INFORMATION IS PROVIDED FOR PURPOSES OF APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS BOND.
ASSUMING THE COLLATERAL PREPAYS AT 0% CPR AND THE ARD LOANS PREPAY ON THEIR
ACCELERATED REPAYMENT DATE, THIS CERTIFICATE IS ISSUED ON DECEMBER __, 1997,
WITH AN INITIAL COUPON RATE OF ____%. THIS CERTIFICATE HAS BEEN ISSUED WITH
$ OF OID PER $1,000 OF INITIAL PRINCIPAL AMOUNT, THE MONTHLY YIELD
EXPRESSED ON AN ANNUAL BASIS IS %, AND THE AMOUNT OF OID ATTRIBUTABLE TO
THE INITIAL SHORT ACCRUAL PERIOD IS $ PER $1,000 OF INITIAL PRINCIPAL
AMOUNT, COMPUTED ASSUMING THE YIELD IS ACCRUED DURING THE INITIAL PERIOD ON
THE BASIS OF DAILY COMPOUNDING.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG
AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A OR (C) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE
TRANSFEROR TO THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING
ON THE LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF
THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS
DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN OWNERSHIP AND TRANSFER
REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING AGREEMENT. (WITH RESPECT
TO THE CLASS H, CLASS I AND CLASS J CERTIFICATES ONLY: A TRANSFEREE IS ALSO
REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE
FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT.)
(WITH RESPECT TO THE CLASS H, CLASS I AND CLASS J CERTIFICATES ONLY: THIS
CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE
EMPLOYEE RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR
(ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN
(INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF
LABOR REGULATION Section 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING
THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i)
OR (ii) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH
ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR
TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE
"PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF
ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF
ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION"
WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND
WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE SERVICER, THE
SPECIAL SERVICER, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF
THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A
CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.)
PASS-THROUGH RATE: Variable AGGREGATE SCHEDULED PRINCIPAL BALANCE
OF THE LOANS AFTER DEDUCTING PAYMENTS
DENOMINATION: $___________ DUE AND PREPAYMENTS RECEIVED ON OR
BEFORE THE CUT-OFF DATE: $____________
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 11, 1997 SERVICER: FIRST UNION NATIONAL BANK
CUT-OFF DATE: DECEMBER 11, 1997 SPECIAL SERVICER: LENNAR PARTNERS,
INC.
CLOSING DATE: DECEMBER 19, 1997
TRUSTEE: NORWEST BANK MINNESOTA,
FIRST DISTRIBUTION DATE: NATIONAL ASSOCIATION
JANUARY 20, 1998
AGGREGATE CERTIFICATE BALANCE CUSIP NO. 22540A
OF THE CLASS (F)(G)(H)(I)(J)
CERTIFICATES AS OF THE CLOSING CERTIFICATE NO.: __
DATE: $_________
THIS CLASS (F)(G)(H)(I)(J) CERTIFICATE evidences a beneficial ownership
interest in a trust fund, consisting primarily of (i) a pool of commercial
and multifamily mortgage loans (the "Loans"), all interest and principal
received or receivable on or with respect to the Loans (other than payments
of principal and interest due and payable on the Loans on or before the Cut-
off Date and payments of principal and interest due and payable on the Loans
after the Cut-off Date and paid on or before the Cut-off Date), together with
all documents included in the related Mortgage Files; (ii) such funds or
assets as from time to time are deposited in the Certificate Account, the
Distribution Accounts, the Excess Interest Distribution Account, the Interest
Reserve Account, any Servicing Accounts, and, if established, the REO
Account; (iii) any REO Property; (iv) the rights of the mortgagee under all
Insurance Policies with respect to the Loans, (v) the rights of the Depositor
under the Mortgage Loan Purchase Agreement and (vi) Yield Protection Payment
Advances (collectively, the "Trust Fund"), formed and sold by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF
THE UNITED STATES.
THIS CERTIFIES THAT _________
is the registered owner of the interest evidenced by this Certificate in the
Class (F)(G)(H)(I)(J) Certificates issued by the Trust Fund created pursuant
to the Pooling and Servicing Agreement, dated as of December 11, 1997 (the
"Pooling and Servicing Agreement"), among Credit Suisse First Boston Mortgage
Securities Corp. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Special Servicer and the Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To
the extent not defined herein, the capitalized terms used herein shall have
the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as
a percentage obtained by dividing the Denomination of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of
the Class (F)(G)(H)(I)(J) Certificates. The Certificates are designated as
the Credit Suisse First Boston Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates, Series 1997-C2 and are issued in sixteen Classes
as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust Fund.
This Certificate (other than any interest represented by this
Certificate in Yield Protection Payments) does not purport to summarize the
Pooling and Servicing Agreement and reference is made to that agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds, and duties evidenced hereby and the rights, duties and obligations
of the Trustee. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Pooling and Servicing Agreement, as
amended from time to time, to which the Certificateholder by virtue of the
acceptance hereof assents and by which the Certificateholder is bound. In
the case of any conflict between terms specified in this Certificate and
terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and
interest then distributable, if any, allocable to the Class of Certificates
of the same Class as this Certificate for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums, Yield Maintenance Charges
and Yield Protection Payments, as provided in the Pooling and Servicing
Agreement. All sums distributable on this Certificate are payable in the
coin or currency of the United States of America as at the time of payment is
legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class
(F)(G)(H)(I)(J) Pass-Through Rate specified in the Pooling and Servicing
Agreement on the Certificate Balance of this Certificate immediately prior to
each Distribution Date. Principal and interest allocated to this Certificate
on any Distribution Date will be in an amount due to this Certificate's pro
rata share of the sum of the Available Distribution Amount to be distributed
on the Certificates of this Class as of such Distribution Date, with a final
distribution to be made upon retirement of this Certificate as set forth in
the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest
on the Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. The
Certificate Account and the Distribution Accounts will be held in the name of
the Servicer and Trustee, respectively, on behalf of the Certificateholders,
and the Servicer (with respect to the Certificate Account) or the Trustee
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other net income earned on
funds in the Certificate Account will be paid to the Servicer and withdrawals
from the Certificate Account shall be made from time to time for purposes
other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of
the Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, if such Certificateholder (1) has provided the
Trustee with wire instructions in writing at least five Business Days prior
to the related Record Date and (2) is the registered owner of Certificates
with an original Certificate Balance or Notional Balance, as applicable, of
at least $5,000,000, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other
location specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to
receive the final distribution with respect thereto. If within one year
after the second notice not all of such Certificates shall have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. No interest shall accrue
or be payable to any Certificateholder on any amount held in trust as a
result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 4.01(h) of the Pooling
and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, and subject to
certain limitations set forth therein, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this
Certificate for registration of transfer at the office of the Certificate
Registrar or at the office of its transfer agent, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by
the Holder hereof or such Holder's attorney-in-fact duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class (F)(G)(H)(I)(J) Certificates will be issued in book-entry form through
the facilities of DTC in Denominations of not less than $10,000 initial
Certificate Balance and in integral multiples of $1,000 in excess thereof.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to
the contrary.
The Pooling and Servicing Agreement may be amended by the parties
thereto, without the consent of any of the Holders of Certificates (i) to
cure any ambiguity, (ii) to correct or supplement any provision therein which
may be inconsistent with any other provision therein or with the Prospectus
Supplement or the Prospectus or to correct any error, (iii) to change the
timing and/or nature of deposits in the Certificate Account, the Distribution
Accounts or the REO Account, provided that (A) the P&I Advance Date shall not
be later than the related Distribution Date, (B) such change would not
adversely affect in any material respect the interests of any
Certificateholder, as evidenced by an opinion of counsel (at the expense of
the party requesting the amendment) and (C) such change would not result in
the downgrading, qualification or withdrawal of the then current ratings
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from each Rating Agency to such effect, (iv) to modify, eliminate or
add to any of its provisions (A) to such extent as shall be necessary to
maintain the qualification of the Trust Fund (or either the Upper-Tier REMIC
or Lower-Tier REMIC) as a REMIC or to avoid or minimize the risk of
imposition of any tax on the Trust Fund, provided that the Trustee has
received an opinion of counsel (at the expense of the party requesting the
amendment) to the effect that (1) such action is necessary or desirable to
maintain such qualification or to avoid or minimize such risk and (2) such
action will not adversely affect in any material respect the interests of any
holder of the Certificates or (B) to restrict the transfer of the Residual
Certificates, provided that the Depositor has determined that the
then-current ratings of any Class of the Certificates will not be downgraded,
qualified or withdrawn, as evidenced by a letter from each Rating Agency to
such effect, and that any such amendment will not give rise to a federal tax
with respect to the transfer of the Residual Certificates to a non-permitted
transferee, (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement or any other
change, provided that such action will not adversely affect in any material
respect the interests of any Certificateholder or (vi) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary
to maintain the then current ratings assigned to each Class of Certificates
by each Rating Agency as confirmed in writing.
The Pooling and Servicing Agreement may also be amended by the
parties thereto with the consent of the Holders of Certificates of each Class
affected thereby evidencing, in each case, not less than 66-2/3% of the
aggregate Percentage Interests constituting such Class for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Holders of the Certificates, except that no such
amendment may (i) reduce in any manner the amount of, or delay the timing of,
payments received on the Loans which are required to be distributed on a
Certificate of any Class without the consent of the Holder of such
Certificate, (ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such amendment
without the consent of the Holders of all Certificates of such Class then
outstanding, (iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding, amend the section of the Pooling and Servicing
Agreement that relates to the provisions described in this paragraph.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without
having first received an opinion of counsel to the effect that such amendment
or the exercise of any power granted to the Servicer, the Special Servicer,
the Depositor, the Trustee or any other specified person in accordance with
such amendment will not result in the imposition of a tax on the REMIC
constituted by the Trust Fund or cause the Trust Fund (or either the
Upper-Tier REMIC or Lower-Tier REMIC) to fail to qualify as a REMIC.
The Mortgage Loan Seller may, at its option, elect to purchase all
of the Loans and each REO Property remaining in the Trust Fund by giving
written notice to the Trustee and the other parties hereto within 60 days of
the first Distribution Date on which the aggregate Stated Principal Balances
of the Loans and any REO Loans remaining in the Trust Fund is less than 3.75%
of the aggregate Cut-off Date Principal Balance of the Loans set forth in the
Preliminary Statement to the Pooling and Servicing Agreement. If the
Mortgage Loan Seller does not exercise such option within 60 days after it
becomes exercisable, the Holders of a majority of the Percentage Interests in
the Controlling Class can notify the Mortgage Loan Seller of their intention
to exercise such option and if the Mortgage Loan Seller does not exercise
such option within 10 Business Days thereafter, such Holders of the
Controlling Class will be entitled to exercise such option. If the Holders of
a majority of the Percentage Interests of the Controlling Class do not
exercise such option within 60 days after it becomes exercisable, Servicer
can notify the Mortgage Loan Seller of its intention to exercise such option
and if the Mortgage Loan Seller does not exercise such option within 10
Business Days thereafter, the Servicer will be entitled to exercise such
option.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and
Servicing Agreement), shall terminate upon payment (or provision for payment)
to the Certificateholders of all amounts held by or on behalf of the Trustee
and required hereunder to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase by the Mortgage Loan Seller, the Holders
of the Controlling Class or the Servicer of all the Loans and each REO
Property remaining in the Trust Fund and (ii) the final payment or other
liquidation (or any advance with respect thereto) of the last Loan or REO
Property remaining in the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of Joseph
P. Kennedy, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the
Certificates or the Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated: _______
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS (F)(G)(H)(I)(J) CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
Authenticating Agent
By: ___________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT
TEN ENT - as tenants by the
entireties ___________ Custodian under
JT TEN - as joint tenants with (Cust)
rights of survivorship and
not as tenants in common Uniform Gifts to Minors Act
__________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint
to transfer the said Certificate in the Certificate register of the
within-named Trust, with full power of substitution in the premises.
___________________________________
Dated: NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every
particular without alteration or
enlargement or any change whatever.
_____________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by
a member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ___________________________________________
for the account of __________________________________ account number
_______________ or, if mailed by check, to _________________________________.
Statements should be mailed to _____________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-6
FORM OF CLASS V-1 CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-C2, CLASS V-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG
AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A OR (C) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE
TRANSFEROR TO THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING
ON THE LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF
THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS
DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO
DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF
EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE
EMPLOYEE RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR
(ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN
(INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF
LABOR REGULATION Section 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING
THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i)
OR (ii) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH
ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR
TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE
"PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF
ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF
ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION"
WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND
WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE SERVICER, THE
SPECIAL SERVICER, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF
THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE
POOLING AND SERVICING AGREEMENT.
PERCENTAGE INTEREST: __% SERVICER: FIRST UNION NATIONAL BANK
DATE OF POOLING AND SERVICING SPECIAL SERVICER: LENNAR PARTNERS,
AGREEMENT: AS OF DECEMBER 11, 1997 INC.
CUT-OFF DATE: DECEMBER 11, 1997 TRUSTEE: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
CLOSING DATE: DECEMBER 19, 1997
CERTIFICATE NO.: _
FIRST DISTRIBUTION DATE:
JANUARY 20, 1998
THIS CLASS V-1 CERTIFICATE evidences a beneficial ownership interest in a
trust fund, consisting primarily of (i) a pool of commercial and multifamily
mortgage loans (the "Loans"), all interest and principal received or
receivable on or with respect to the Loans (other than payments of principal
and interest due and payable on the Loans on or before the Cut-off Date and
payments of principal and interest due and payable on the Loans after the
Cut-off Date and paid on or before the Cut-off Date), together with all
documents included in the related Mortgage Files; (ii) such funds or assets
as from time to time are deposited in the Certificate Account, the
Distribution Accounts, the Excess Interest Distribution Account, the Interest
Reserve Account, any Servicing Accounts, and, if established, the REO
Account; (iii) any REO Property; (iv) the rights of the mortgagee under all
Insurance Policies with respect to the Loans, (v) the rights of the Depositor
under the Mortgage Loan Purchase Agreement and (vi) Yield Protection Payment
Advances (collectively, the "Trust Fund"), formed and sold by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF
THE UNITED STATES.
THIS CERTIFIES THAT ____________________
is the registered owner of the interest evidenced by this Certificate in the
Class V-1 Certificates issued by the Trust Fund created pursuant to the
Pooling and Servicing Agreement, dated as of December 11, 1997 (the "Pooling
and Servicing Agreement"), among Credit Suisse First Boston Mortgage
Securities Corp. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Special Servicer and the Servicer. The Holder of this Certificate is not
entitled to distributions of principal or, except as described herein,
interest from the Trust Fund. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To
the extent not defined herein, the capitalized terms used herein shall have
the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate represents the right to receive Excess Interest.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the
Class V-1 Certificates that is specified on the face hereof. The
Certificates are designated as the Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
1997-C2 and are issued in sixteen Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the
Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, as amended
from time to time, to which the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of
any conflict between terms specified in this Certificate and terms specified
in the Pooling and Servicing Agreement, the terms of the Pooling and
Servicing Agreement shall govern.
The Class V-1 Certificates will represent pro rata undivided
beneficial interests in the portion of the Trust Fund consisting of Excess
Interest, and such portion will be treated as a grantor trust under subpart E
of part I of subchapter J of chapter 1 of subtitle A of the Internal Revenue
Code. Each Holder of this Certificate, by acceptance hereof, agrees to treat
this Certificate in accordance with the preceding sentence for purposes of
federal income taxes, state and local income and franchise taxes and other
taxes imposed on or measured by income and agrees to take no action
inconsistent with the foregoing.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of Excess Interest then distributable, if any, to the Class V-1
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. The
Certificate Account and the Distribution Accounts will be held in the name of
the Servicer and Trustee, respectively, on behalf of the Certificateholders,
and the Servicer (with respect to the Certificate Account) or the Trustee
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other net income earned on
funds in the Certificate Account will be paid to the Servicer and withdrawals
from the Certificate Account shall be made from time to time for purposes
other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of
the Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, if such Certificateholder (1) has provided the
Trustee with wire instructions in writing at least five Business Days prior
to the related Record Date and (2) is the registered owner of Certificates
with an original Certificate Balance or Notional Balance, as applicable, of
at least $5,000,000, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other
location specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to
receive the final distribution with respect thereto. If within one year
after the second notice not all of such Certificates shall have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. No interest shall accrue
or be payable to any Certificateholder on any amount held in trust as a
result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 4.01(h) of the Pooling
and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, and subject to
certain limitations set forth therein, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this
Certificate for registration of transfer at the office of the Certificate
Registrar or at the office of its transfer agent, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by
the Holder hereof or such Holder's attorney-in-fact duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
The Class V-1 Certificates will be issued in fully registered,
certificated form, in Percentage Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to
the contrary.
The Pooling and Servicing Agreement may be amended by the parties
thereto, without the consent of any of the Holders of Certificates (i) to
cure any ambiguity, (ii) to correct or supplement any provision therein which
may be inconsistent with any other provision therein or with the Prospectus
Supplement or the Prospectus, or to correct any error, (iii) to change the
timing and/or nature of deposits in the Certificate Account, the Distribution
Accounts or the REO Account, provided that (A) the P&I Advance Date shall not
be later than the related Distribution Date, (B) such change would not
adversely affect in any material respect the interests of any
Certificateholder, as evidenced by an opinion of counsel (at the expense of
the party requesting the amendment) and (C) such change would not result in
the downgrading, qualification or withdrawal of the then current ratings
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from each Rating Agency to such effect, (iv) to modify, eliminate or
add to any of its provisions (A) to such extent as shall be necessary to
maintain the qualification of the Trust Fund (or either the Upper-Tier REMIC
or Lower-Tier REMIC) as a REMIC or to avoid or minimize the risk of
imposition of any tax on the Trust Fund, provided that the Trustee has
received an opinion of counsel (at the expense of the party requesting the
amendment) to the effect that (1) such action is necessary or desirable to
maintain such qualification or to avoid or minimize such risk and (2) such
action will not adversely affect in any material respect the interests of any
holder of the Certificates or (B) to restrict the transfer of the Residual
Certificates, provided that the Depositor has determined that the
then-current ratings of any Class of the Certificates will not be downgraded,
qualified or withdrawn, as evidenced by a letter from each Rating Agency to
such effect, and that any such amendment will not give rise to a federal tax
with respect to the transfer of the Residual Certificates to a non-permitted
transferee, (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement or any other
change, provided that such action will not adversely affect in any material
respect the interests of any Certificateholder or (vi) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary
to maintain the then current ratings assigned to each Class of Certificates
by each Rating Agency as confirmed in writing.
The Pooling and Servicing Agreement may also be amended by the
parties thereto with the consent of the Holders of Certificates of each Class
affected thereby evidencing, in each case, not less than 66-2/3% of the
aggregate Percentage Interests constituting such Class for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Holders of the Certificates, except that no such
amendment may (i) reduce in any manner the amount of, or delay the timing of,
payments received on the Loans which are required to be distributed on a
Certificate of any Class without the consent of the Holder of such
Certificate, (ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such amendment
without the consent of the Holders of all Certificates of such Class then
outstanding, (iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding, amend the section of the Pooling and Servicing
Agreement that relates to the provisions described in this paragraph.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without
having first received an opinion of counsel to the effect that such amendment
or the exercise of any power granted to the Servicer, the Special Servicer,
the Depositor, the Trustee or any other specified person in accordance with
such amendment will not result in the imposition of a tax on the REMIC
constituted by the Trust Fund or cause the Trust Fund (or either the
Upper-Tier REMIC or Lower-Tier REMIC) to fail to qualify as a REMIC.
The Mortgage Loan Seller may, at its option, elect to purchase all
of the Loans and each REO Property remaining in the Trust Fund by giving
written notice to the Trustee and the other parties hereto within 60 days of
the first Distribution Date on which the aggregate Stated Principal Balances
of the Loans and any REO Loans remaining in the Trust Fund is less than 3.75%
of the aggregate Cut-off Date Principal Balance of the Loans set forth in the
Preliminary Statement to the Pooling and Servicing Agreement. If the
Mortgage Loan Seller does not exercise such option within 60 days after it
becomes exercisable, the Holders of a majority of the Percentage Interests in
the Controlling Class can notify the Mortgage Loan Seller of their intention
to exercise such option and if the Mortgage Loan Seller does not exercise
such option within 10 Business Days thereafter, such Holders of the
Controlling Class will be entitled to exercise such option. If the Holders of
a majority of the Percentage Interests of the Controlling Class do not
exercise such option within 60 days after it becomes exercisable, Servicer
can notify the Mortgage Loan Seller of its intention to exercise such option
and if the Mortgage Loan Seller does not exercise such option within 10
Business Days thereafter, the Servicer will be entitled to exercise such
option.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and
Servicing Agreement), shall terminate upon payment (or provision for payment)
to the Certificateholders of all amounts held by or on behalf of the Trustee
and required hereunder to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase by the Mortgage Loan Seller, the Holders
of the Controlling Class or the Servicer of all the Loans and each REO
Property remaining in the Trust Fund and (ii) the final payment or other
liquidation (or any advance with respect thereto) of the last Loan or REO
Property remaining in the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of Joseph
P. Kennedy, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the
Certificates or the Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
not in its individual capacity but solely
as Certificate Registrar under the Pooling
and Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated: ______
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS V-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
Authenticating Agent
By: ___________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT
TEN ENT - as tenants by the
entireties ___________ Custodian under
JT TEN - as joint tenants with (Cust)
rights of survivorship and
not as tenants in common Uniform Gifts to Minors Act
__________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint
to transfer the said Certificate in the Certificate register of the
within-named Trust, with full power of substitution in the premises.
_________________________________
Dated: ______________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every
particular without alteration or
enlargement or any change whatever.
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by
a member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
________________________________________________________ for the account of
__________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements
should be mailed to
_______________________________________________________________. This
information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-7
FORM OF RESIDUAL CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-C2, CLASS (R)(LR)
THIS CLASS (R)(LR) CERTIFICATE IS SUBORDINATE IN RIGHT OF PAYMENT TO CERTAIN
OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE
INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(A)(2) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH
TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY,
AS SET FORTH IN SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG
AS THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A OR (C) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE
TRANSFEROR TO THE TRUSTEE OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING
ON THE LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF
THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS
DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO
DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF
EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE
EMPLOYEE RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR
(ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN
(INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF
LABOR REGULATION Section 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING
THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i)
OR (ii) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO
THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH
ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR
TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE
"PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF
ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF
ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION"
WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND
WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE SERVICER, THE
SPECIAL SERVICER, THE INITIAL PURCHASER OR THE DEPOSITOR TO ANY OBLIGATION OR
LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF
THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE
POOLING AND SERVICING AGREEMENT.
PERCENTAGE INTEREST EVIDENCED SERVICER: FIRST UNION NATIONAL BANK
BY THIS CERTIFICATE: %
DATE OF POOLING AND SERVICING SPECIAL SERVICER: lENNAR PARTNERS,
AGREEMENT: AS OF DECEMBER 11, INC.
1997
TRUSTEE: NORWEST BANK MINNESOTA,
CUT-OFF DATE: DECEMBER 11,1997 NATIONAL ASSOCIATION
CLOSING DATE: DECEMBER 19, 1997 CERTIFICATE NO.: __
FIRST DISTRIBUTION DATE:
JANUARY 20, 1998
THIS CLASS (R)(LR) CERTIFICATE evidences a beneficial ownership interest in a
trust fund, consisting primarily of (i) a pool of commercial and multifamily
mortgage loans (the "Loans"), all interest and principal received or
receivable on or with respect to the Loans (other than payments of principal
and interest due and payable on the Loans on or before the Cut-off Date and
payments of principal and interest due and payable on the Loans after the
Cut-off Date and paid on or before the Cut-off Date), together with all
documents included in the related Mortgage Files; (ii) such funds or assets
as from time to time are deposited in the Certificate Account, the
Distribution Accounts, the Excess Interest Distribution Account, the Interest
Reserve Account, any Servicing Accounts, and, if established, the REO
Account; (iii) any REO Property; (iv) the rights of the mortgagee under all
Insurance Policies with respect to the Loans, (v) the rights of the Depositor
under the Mortgage Loan Purchase Agreement and (vi) Yield Protection Payment
Advances (collectively, the "Trust Fund"), formed and sold by
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF
THE UNITED STATES.
THIS CERTIFIES THAT ____________________
is the registered owner of the interest evidenced by this Certificate in the
Class (R)(LR) Certificates issued by the Trust Fund created pursuant to the
Pooling and Servicing Agreement, dated as of December 11, 1997 (the "Pooling
and Servicing Agreement"), among Credit Suisse First Boston Mortgage
Securities Corp. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Special Servicer and the Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To
the extent not defined herein, the capitalized terms used herein shall have
the meanings assigned thereto in the Pooling and Servicing Agreement.
(With respect to Class LR Certificates only: The holders of 100% of
the Percentage Interests in the Class LR Certificates have the right to
purchase any ARD Loan on or after its Anticipated Payment Date at the
purchase price, and under the circumstances, described in the Pooling and
Servicing Agreement.) This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing the Percentage
Interest in the Class (R)(LR) Certificates that is specified on the face
hereof. The Certificates are designated as the Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates,
Series 1997-C2 and are issued in sixteen Classes as specifically set forth in
the Pooling and Servicing Agreement. The Certificates will evidence in the
aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the
Trustee. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, as amended
from time to time, to which the Certificateholder by virtue of the acceptance
hereof assents and by which the Certificateholder is bound. In the case of
any conflict between terms specified in this Certificate and terms specified
in the Pooling and Servicing Agreement, the terms of the Pooling and
Servicing Agreement shall govern.
This Certificate is a "residual interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(2) and 860D of the Internal Revenue Code of 1986, as amended. Each
transferee of this Certificate, by acceptance hereof, agrees to treat, and
take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes of federal income taxes,
state and local income and franchise taxes and other taxes imposed on or
measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement,
distribution, if any, on this Certificate shall be made by the Trustee to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the Distribution Date to the Person in whose name this
Certificate is registered as of the related Record Date. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. The
Certificate Account and the Distribution Accounts will be held in the name of
the Servicer and Trustee, respectively, on behalf of the Certificateholders,
and the Servicer (with respect to the Certificate Account) or the Trustee
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other net income earned on
funds in the Certificate Account will be paid to the Servicer and withdrawals
from the Certificate Account shall be made from time to time for purposes
other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of
the Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, if such Certificateholder (1) has provided the
Trustee with wire instructions in writing at least five Business Days prior
to the related Record Date and (2) is the registered owner of Certificates
with an original Certificate Balance or Notional Balance, as applicable, of
at least $5,000,000, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other
location specified in the notice to Certificateholders of such final
distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to
receive the final distribution with respect thereto. If within one year
after the second notice not all of such Certificates shall have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining non-tendering
Certificateholders concerning surrender of their Certificates. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. No interest shall accrue
or be payable to any Certificateholder on any amount held in trust as a
result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 4.01(h) of the Pooling
and Servicing Agreement.
As provided in the Pooling and Servicing Agreement, and subject to
certain limitations set forth therein, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this
Certificate for registration of transfer at the office of the Certificate
Registrar or at the office of its transfer agent, duly endorsed by, or
accompanied by an assignment in the form below or other written instrument of
transfer in form satisfactory to the Certificate Registrar duly executed by
the Holder hereof or such Holder's attorney-in-fact duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized Denominations will be issued to the designated transferee or
transferees.
Each Person who has or who acquires any Ownership Interest in a
Class (R)(LR) Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Trustee under Section
5.02(d) of the Pooling and Servicing Agreement to deliver payments to a
Person other than such Person. The rights of each Person acquiring any
Ownership Interest in a Class (R)(LR) Certificate are expressly subject to
the following provisions: (A) No Person holding or acquiring any Ownership
Interest in a Class (R)(LR) Certificate shall be a Disqualified Organization
or agent thereof (including a nominee, middleman or similar person) (an
"Agent"), a Plan or a Person acting on behalf of or investing the assets of a
Plan (such Plan or Person, an "ERISA Prohibited Holder") or a Non-U.S. Person
and shall promptly notify the Servicer, the Trustee and the Certificate
Registrar of any change or impending change to such status; (B) In
connection with any proposed Transfer of any Ownership Interest in a Class
(R)(LR) Certificate, the Certificate Registrar shall require delivery to it,
and no Transfer of any Class (R)(LR) Certificate shall be registered until
the Certificate Registrar receives, an affidavit substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer
Affidavit") from the proposed Transferee, in form and substance satisfactory
to the Certificate Registrar, representing and warranting, among other
things, that such Transferee is not a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, and that it has
reviewed the provisions of Section 5.02(d) of the Pooling and Servicing
Agreement and agrees to be bound by them; (C) Notwithstanding the delivery
of a Transfer Affidavit by a proposed Transferee under clause (B) above, if
the Certificate Registrar has actual knowledge that the proposed Transferee
is a Disqualified Organization or Agent thereof, an ERISA Prohibited Holder
or a Non-U.S. Person, no Transfer of an Ownership Interest in a Class (R)(LR)
Certificate to such proposed Transferee shall be effected; and (D) Each
Person holding or acquiring any Ownership Interest in a Class (R)(LR)
Certificate shall agree (1) to require a Transfer Affidavit from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest in such Class (R)(LR) Certificate and (2) not to transfer its
Ownership Interest in such Class (R)(LR) Certificate unless it provides to
the Certificate Registrar a letter substantially in the form attached to the
Pooling and Servicing Agreement as Exhibit D-2 (a "Transferor Letter")
certifying that, among other things, it has no actual knowledge that such
prospective Transferee is a Disqualified Organization, an Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person.
The Class (R)(LR) Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar and any of their agents may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to
the contrary.
The Pooling and Servicing Agreement may be amended by the parties
thereto, without the consent of any of the Holders of Certificates (i) to
cure any ambiguity, (ii) to correct or supplement any provision therein which
may be inconsistent with any other provision therein or with the Prospectus
Supplement or the Prospectus or to correct any error, (iii) to change the
timing and/or nature of deposits in the Certificate Account, the Distribution
Accounts or the REO Account, provided that (A) the P&I Advance Date shall not
be later than the related Distribution Date, (B) such change would not
adversely affect in any material respect the interests of any
Certificateholder, as evidenced by an opinion of counsel (at the expense of
the party requesting the amendment) and (C) such change would not result in
the downgrading, qualification or withdrawal of the then current ratings
assigned to any Class of Certificates by any Rating Agency, as evidenced by a
letter from each Rating Agency to such effect, (iv) to modify, eliminate or
add to any of its provisions (A) to such extent as shall be necessary to
maintain the qualification of the Trust Fund (or either the Upper-Tier REMIC
or Lower-Tier REMIC) as a REMIC or to avoid or minimize the risk of
imposition of any tax on the Trust Fund, provided that the Trustee has
received an opinion of counsel (at the expense of the party requesting the
amendment) to the effect that (1) such action is necessary or desirable to
maintain such qualification or to avoid or minimize such risk and (2) such
action will not adversely affect in any material respect the interests of any
holder of the Certificates or (B) to restrict the transfer of the Residual
Certificates, provided that the Depositor has determined that the
then-current ratings of any Class of the Certificates will not be downgraded,
qualified or withdrawn, as evidenced by a letter from each Rating Agency to
such effect, and that any such amendment will not give rise to a federal tax
with respect to the transfer of the Residual Certificates to a non-permitted
transferee, (v) to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement or any other
change, provided that such action will not adversely affect in any material
respect the interests of any Certificateholder or (vi) to amend or supplement
any provision of the Pooling and Servicing Agreement to the extent necessary
to maintain the then current ratings assigned to each Class of Certificates
by each Rating Agency as confirmed in writing.
The Pooling and Servicing Agreement may also be amended by the
parties thereto with the consent of the Holders of Certificates of each Class
affected thereby evidencing, in each case, not less than 66-2/3% of the
aggregate Percentage Interests constituting such Class for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any
manner the rights of the Holders of the Certificates, except that no such
amendment may (i) reduce in any manner the amount of, or delay the timing of,
payments received on the Loans which are required to be distributed on a
Certificate of any Class without the consent of the Holder of such
Certificate, (ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such amendment
without the consent of the Holders of all Certificates of such Class then
outstanding, (iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of such
Class then outstanding, amend the section of the Pooling and Servicing
Agreement that relates to the provisions described in this paragraph.
Notwithstanding the foregoing, the Trustee will not be required to
consent to any amendment to the Pooling and Servicing Agreement without
having first received an opinion of counsel to the effect that such amendment
or the exercise of any power granted to the Servicer, the Special Servicer,
the Depositor, the Trustee or any other specified person in accordance with
such amendment will not result in the imposition of a tax on the REMIC
constituted by the Trust Fund or cause the Trust Fund (or either the
Upper-Tier REMIC or Lower-Tier REMIC) to fail to qualify as a REMIC.
The Mortgage Loan Seller may, at its option, elect to purchase all
of the Loans and each REO Property remaining in the Trust Fund by giving
written notice to the Trustee and the other parties hereto within 60 days of
the first Distribution Date on which the aggregate Stated Principal Balances
of the Loans and any REO Loans remaining in the Trust Fund is less than 3.75%
of the aggregate Cut-off Date Principal Balance of the Loans set forth in the
Preliminary Statement to the Pooling and Servicing Agreement. If the
Mortgage Loan Seller does not exercise such option within 60 days after it
becomes exercisable, the Holders of a majority of the Percentage Interests in
the Controlling Class can notify the Mortgage Loan Seller of their intention
to exercise such option and if the Mortgage Loan Seller does not exercise
such option within 10 Business Days thereafter, such Holders of the
Controlling Class will be entitled to exercise such option. If the Holders of
a majority of the Percentage Interests of the Controlling Class do not
exercise such option within 60 days after it becomes exercisable, Servicer
can notify the Mortgage Loan Seller of its intention to exercise such option
and if the Mortgage Loan Seller does not exercise such option within 10
Business Days thereafter, the Servicer will be entitled to exercise such
option.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and
Servicing Agreement), shall terminate upon payment (or provision for payment)
to the Certificateholders of all amounts held by or on behalf of the Trustee
and required hereunder to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase by the Mortgage Loan Seller, the Holders
of the Controlling Class or the Servicer of all the Loans and each REO
Property remaining in the Trust Fund and (ii) the final payment or other
liquidation (or any advance with respect thereto) of the last Loan or REO
Property remaining in the Trust Fund. In no event, however, will the trust
created by the Pooling and Servicing Agreement continue beyond the expiration
of 21 years from the death of the last survivor of the descendants of Joseph
P. Kennedy, the late Ambassador of the United States to the Court of St.
James's, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the
Certificates or the Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
not in its individual capacity but solely
as Certificate Registrar under the Pooling
and Servicing Agreement.
By: ___________________________
AUTHORIZED OFFICER
Dated: ________
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS (R)(LR) CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
Authenticating Agent
By: ___________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT
TEN ENT - as tenants by the
entireties ___________ Custodian under
JT TEN - as joint tenants with (Cust)
rights of survivorship
and not as tenants in Uniform Gifts to Minors Act
common
__________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint
to transfer the said Certificate in the Certificate register of the
within-named Trust, with full power of substitution in the premises.
_______________________________
Dated: ____________ NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
this Certificate in every
particular without alteration or
enlargement or any change whatever.
_______________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by
a member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to
________________________________________________________ for the account of
__________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements
should be mailed to
_______________________________________________________________. This
information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
Loan Asset Property
Number Nos Name Property Address
- ------ ----- -------------------------------------------- -------------------------------------------
<S> <C> <C> <C>
1 MGM Plaza 2400 Colorado Avenue and 2400-2500 Broadway
2 135 East 57th Street 135 East 57th Street
3 Paramount Hotel 235 West 46th Street
4 Beverly Connection 8480-90 Beverly Boulevard
5 The Gift Center & Jewelry Mart 888 Brannan Street
6 Embassy Suites Hotel - Washington, DC 1250 22nd Street, NW
7 Ramada Suites Hotel at Lincoln Harbor 500 Harbor Boulevard
8 Market-Post Tower 55 South Market Street
9 78 Corporate Center 180 Washington Valley Road
10 240 West 40th Street 240 West 40th Street
11 Stone Mountain Square Shopping Center 5370 U.S. Highway 78
12 Buena Vista Plaza 2411 West Olive Avenue
13 KMart Store #4983 - San Jose 777 Story Road
14 Mesa Regal RV Resort 4700 East Main Street
15 Johnson City Crossing Shopping Center Southeast Side of State of Franklin Road
16 KMart Store #4990 - Canton, MI 41660 Ford Road
17 131 State Street 131 State Street
18 Dara Gardens Cooperative 150-10/20/30/40 71st Avenue & 150-11/15/25/29 72nd
19 1 Holiday Inn Totowa One Route 46 West
19 2 One Route 46 West Retail One Route 46 West
20 Kendig Square Shopping Center 2600 North Willow Street Pike
21 1515 Industrial Way 1515 Industrial Way
22 KMart Store #4991 - Maple Heights, OH 5500 Warrenville Center Road
23 Arapahoe East 9600 E. Arapahoe Road
24 Cobb Theaters - Ocala, FL SW 19th & SW 27th Avenue
25 Court of Flags Apartments 22804 91st Way South
26 Malibu Creek Plaza 23357-23361 Pacific Coast Hwy. & 3822-3896 Cross C
27 Bannockburn Executive Plaza 2275 Half Day Road
28 Holiday Inn-Harrisburg West 5401 Carlisle Pike
29 Sherwood Forrest 5300 W Irlo Bronson Memorial Highway
30 Polo Club Apartments 3806 78th Ave. Ct. W
31 NorthTech Business Park 20 & 22 Firstfield Rd., 1300 Quince Orchard Blvd.
32 1 Fox Creek Apts. 4303 County Road
32 2 Spanish Trace/Spanish Trails 1400 East 35th Street
32 3 Fox Creek Camden 1485 Country Cub Rd.
32 4 Fox Creek Magnolia 2121 Lacari Rd.
33 1 Delavan Plaza Wright Street
33 2 Westdayl Plaza SEC of Rte 136
34 Logan Industrial Park 440 William McClellan Highway
35 Waterfront Centre 800 9th Street, S.W.
36 Garden Ridge 2512 South Stemmons Freeway
37 Brighton Beach Shopping Center 2851-2885 West 6th Street a/k/a 532 Neptune Avenue
38 Commerce Plaza III NWC Blackwood-Clemeton and Millbridge Roads
39 Timonium Holiday Inn Select 2004 Greenspring Drive
40 Eagles Landing 2201 104th Street South
41 Lorraine Apartments 245 West Loraine Street
42 Best Western Grant Park Hotel 1100 Michigan Avenue
43 The Evanston Holiday Inn & Conference Cen 1501 Sherman Avenue
44 Fox Jewelry Plaza and Los Angeles Theatre 610 South Hill / 615 Broadway
45 Wellington Centre 18650 W. Corporate Drive
46 Boulder Cascade Mobile Home Park 1601 S. Sandhill Road
47 KMart Store #3718 - Dallas, Tx - Skillman 6000 Skillman Streer
48 Residence Inn by Marriott - New Haven, CT 3 Long Wharf Drive
49 KMart Store #3863 - Houston, Tx - Cypress 310 FM 1960 West
50 KMart Store #3809 - Houston, Tx - Willowb 17717 State Highway 249
51 Los Gatos Lodge 50 Los Gatos Saratoga Road
52 Tarzana Medical Office Building 18370 Burbank Blvd
53 Lenox Plaza Shopping Center 1750 Route 46 W. - Route 46 & McBride Avenue
54 1 Kratsa Hotels - Comfort Inn 10 Landings Drive
54 2 Kratsa Hotels - Days Inn 4 Beta Road
54 3 Kratsa Hotels - Super 8 8 Landings Drive
55 The Sedona Apartments 3324 Castle Heights Avenue
56 1 Kent Park-Executive House 35, 37 and 39 Danbury Road
56 2 The Kent Building - 43 Danbury Road 43 Danbury Road
56 3 The Kent Building - 57 Danbury Road 57 Danbury Road
57 Newbrite Shopping Center 60 East Main Street
58 Holiday Inn-Huntsville, AL 5903 University Drive
59 1 Donnybrook Shopping Center 1461 Weaver Street
59 2 Orangeburg Shopping Center Dutch Hill Road and Orangeburg Road
60 Washington Centre 415 Egg Harbor Road
61 Dick's Clothing & Sporting Goods Store 6221 Columbia Crossing Circle
62 Hampshire Ambassador Hotel 132 West 45th Street
63 1 Stonehurst-Baltek Manufacturing Facility/ 10 Fairway Court and 140 La Grand Ave.
63 2 Zenith Laboratories 140 LeGrand Ave.
64 Furr's - Mesa (946) 6910 North Mesa Drive
65 Brandywine - Towne North Plaza 8371 Creedmoor Road
66 Saddleback Plaza 3501 - 3533 East Chapman Avenue
67 Union Camp 9797 Sweet Valley Drive
68 RM-Research Triangle 4900 Prospectus Drive
69 Plaza Arcade 27 West 47th Street
70 Autumn Run Apartments One Trafalgar Square
71 El Paseo North 73-080 & 73-100 El Paseo
72 443 Third Avenue 443-447 Third Avenue (A.K.A. 206 East 31st Street)
73 1 Motel 6 - Shepherdsville, KY 144 Paroquet Springs Drive
73 2 Motel 6 - Georgetown, KY 401 Delphlain Road
73 3 Motel 6 - Corapolis, PA 1170 Thorn Run Road
74 Amazon.com Building Centerpoint Business Complex
75 Southern Slope Apartments 4334 E. 66th Street
76 1 Select Inn of Janesville 3520 Milton Avenue
76 2 Select Inn of Madison 4845 Hayes Road
76 3 Select Inn of Waukesha 2510 Plaza Court
76 4 Econo-Lodge of Madison 4726 East Washington Avenue
77 RM-Camelot East Apartments 1239 West Lynne Way
78 Bradbury Apartments 2222 Huntington Drive
79 1 Victoria's Secret / The Limited Express 1721-1723 Chestnut Street
79 2 The Limited Express 1730-1732 Chestnut Street
80 Heartland Place 212 South Central Avenue
81 Residence Inn by Marriott - Fishers, IN 9765 Cross Point Boulevard
82 Inland Business Center 9004 Archibald Ave.
83 Parkway Plaza Office Building 23945 Calabasas Road
84 BALLY'S-Miami, Florida 3455 Northeast 207th Street
85 RM-St. Rita's Office Building 2350 North Forest Road
86 BALLY'S-Davie, Florida 2701 South University Drive
87 Howard Johnson Hotel 16500 Northwest Second Avenue
88 BALLY'S-Virginia 12255 Hornsbury Lane
89 Freehold Gardens Hotel 50 Gibson Place
90 RM-The Fountains Apartments 6615 Fountains Boulevard
91 Furr's - Eubank (875) 5850 Eubank Boulevard, NE
92 Boott Mills South and Storage 30 French Street/102-1 John Street
93 Furr's - Louisiana (876) 4016 Louisiana Boulevard NE
94 Quakerbridge Shoppes Shopping Center 3800 Quakerbridge Road
95 Emerald Pointe Apartments 1405 Clearbrook Dr. S.E.
96 CVS - Natick, MA 137 Central Street
97 Northgate Plaza 1401-15 North Belt Highway
98 Paramount Best Western 27 Tanzman Road
99 Los Angeles Fine Arts & Wine Storage Comp 2290 S. Centinela Avenue
100 Furr's - Geo. Dieter (938) 1590 George Dieter Drive
101 Heritage Paradise 8777 Skyway
102 Furr's - Viscount (937) 9480 Viscount Boulevard
103 Citrus Park Apartments 320 South Citrus St
104 RM-Williamsburg North 3838 Williamsburg Way
105 Spartan Business Center 1249-1269, 1250-1268, 1271, 1275, 1279 & 1285 Alma
106 Furr's Americas (944) 115 South Americas Avenue
107 Brandywine - Alexander Plaza II 1203 Murfreesboro Road
108 Gold River Racquet Club 2201 Gold Rush Drive
109 1278-1284 First Avenue 1278-1284 First Avenue
110 Bonita Center 860 East Carson Street
111 Interlaken Inn 74 Interlaken Road
112 Le Reve Hotel 8822 Cynthia Street
113 RM-Wayne Estates 6851 Wayne Estates Boulevard
114 Rite Aid - 86th, New York, NY 225 East 86th Street
115 Eckerd's Drug Store - Plano, TX 2450 Jupiter Boulevard
116 Windsor Gardens 220 East 24th Street
117 Brandywine - Clear Point Plaza 2525 U.S. Highway 90
118 Havana Park Center 10600-10782 East Iliff Avenue
119 Brandywine - Windward Village 6291 Windward Boulevard
120 Maumee Marketplace 1504-1552 South Reynolds Drive
121 Colton-2302 Martin 2302 Martin
122 CVS Pharmacy - Greenville, SC Marue St. & Henrydale Ave.
123 RM-Players Club 26675 Players Circle
124 Lafayette Business Park 1900-1940 Lafayette Street
125 Comfort Inn - Garland 3536 West Kingsley Drive
126 7-Eleven - Anaheim, CA 611 West Katella Avenue
127 CVS Pharmacy - Hyannis, MA North Street & High School Road Ext
128 RM-The Villa Apartments 55 Villa Road
129 RM-Stonegate Townhomes 6701 Dickens Ferry Road
130 Marina Lakes Plaza 21st Street and 2021 North Amidon
131 8 Bow Street 8 Bow Street
132 Rite Aid - Kingston, NY 345-361 Flatbush Avenue
133 CVS Pharmacy - Culpeper, Va West Street/South Main Street
134 Colton-18952 MacArthur Blvd. 18952 MacArthur Blvd.
135 Hook-SupeRx, Inc. - Knoxville Street, Peo Knoxville Street and Lindbergh
136 Colton-18872 MacArthur Blvd. 18872 MacArthur Blvd.
137 CVS-Garfield, NJ Midland & Van Winkle
138 Arbor Place Apartments 739 Heritage Avenue
139 RM-Inducon Columbia 101 and 121 Trade Zone Drive
140 Westpark Shopping Center North side of Baltimore National Pike
141 CVS Pharmacy - Lilburn, Ga Beaver Ruin Road and Burns Road
142 Hook-SupeRx, Inc - Prospect Road, Peoria, Prospect Road and Kelly Street
143 Tustin Plaza 13821-13891 Newport Avenue
144 Furr's - Montana (934) 3518 Montana Avenue
145 CVS Pharmacy - Kernsville, NC 817 South Main Street
146 Comfort Inn Hotel 2115 Aerotech Drive
147 Eckerd's Drug Store - Acworth Mars Hill Road
148 Hook-SupeRx, Inc - Big Hollow Road, Peori Big Hollow Road and U.S. 50
149 Revco Discount Drug Center - Elkin, NC North Bridge Street & Oakland Street
150 RM-O'Hara Apartments 200 Mitchell Road
151 Rite Aid - Augusta, ME 83 Hospial Street
152 RM-Jackson Park 1206 East Hilcrest Drive
153 Furr's - Ruidoso (905) 205 Highway 70 West
154 Kendall Professional Building 9150 SW 87th Avenue
155 CVS Pharmacy - North Conway, NH Route 302/Route 16
156 CVS Pharmacy - Monroe, NC Highway 74
157 Seaman's Furniture 32-27 Steinway Street
158 Revco Discount Drug Center - Washington C 1795 Columbus Avenue
159 South Towne Office Park 6000-6400 Gisholt and 2000 Engel Drive
160 CVS Pharmacy - Anderson, SC Highway 81
161 CVS Pharmacy - Cumming, Ga Highway 20 & Haw Creek Circle
162 CVS Pharmacy - Philadelphia, PA 6344 Stenton Avenue
163 Rite Aid - Jonesboro, Battle Creek NWC Battle Creek Rd. at 7267 Tara Blvd.
164 CVS Pharmacy - Burnsville, NC U.S. Highway 19 East
165 Airport Plaza 20 Passaic Avenue
166 Rite Aid - Gastonia, NC 1525 S. York Road
167 Colton Plaza 2171 Campus Drive
168 CVS Pharmacy - Athens, WV 101 South State Street
169 CVS Pharmacy - Oxford, Ma 302 Main Street
170 Saufley Square Shopping Center 4500 Saufley Field Road
171 Rite Aid - Jonesboro, Flint Flint River Road
172 Colton-2222 Martin Street 2222 Martin Street
173 2192 Martin 2192 Martin
174 A-Secured Self and Vehicle Storage Facili 550 North Power Road
175 Casa Del Lago Apartments 132 Oyster Creek Drive
176 Peachtree Apartments 58-128 Peachtree Memorial Drive
177 RM-Beaver Creek 500 Center Grange Road
178 Rite Aid - Hinesville Route 196
179 Brandywine - Kash N'Karry, Pasadena 6851 Gulfport Boulevard
180 North Ranch Center 6425 East Bell Road
181 Rite Aid - Claxton, GA N/W/C East Main Street & DuvalStreet
182 1 The Caledonian 185-191 High Street
182 2 The Transcript Building 164-180 High Street
183 Hollywood Video 5921 University Avenue
184 AAA-Discount Storage 6747 South Sixth Street
185 Colton-Chanteclair Restaurant 18912 MacArthur Blvd
</TABLE>
<TABLE>
<CAPTION>
(Table continued)
Cut-off
Loan Prop Property Property Principal
No. City State Zip Type Type Balance
- ------ -------------------- ----- ----- ------------ ---------------- ------------------
<S> <C> <C> <C> <C> <C> <C>
1 Santa Monica CA 90404 Office 145,894,648
2 New York City NY 10010 Office 75,000,000
3 New York NY 10026 Hospitality Full Service 73,867,407
4 Los Angeles CA 90048 Retail Anchored 63,000,000
5 San Francisco CA 94103 Retail Unanchored 42,969,590
6 Washington DC 20037 Hospitality Full Service 37,100,000
7 Weehawken NJ 07087 Hospitality Full Service 33,462,179
8 San Jose CA 95113 Office 31,935,966
9 Bedminster Township NJ 07921 Office Single Tenant 31,834,631
10 New York NY 10018 Office 25,000,000
11 Stone Mountain GA 30087 Retail Anchored 23,981,901
12 Burbank CA 91506 Office 21,348,483
13 San Jose CA 95013 Net Lease 20,026,222
14 Mesa AZ 85205 Mobile Home Park 18,465,911
15 Johson City TN 37601 Retail Anchored 18,236,237
16 Canton MI 48187 Net Lease 17,541,461
17 Boston MA 02109 Multifamily 16,433,341
18 Kew Garden Hills NY 11367 Multifamily Coop 16,350,311
19 Totowa NJ 07512 Hospitality Full Service 7,336,406
19 Totowa NJ 07512 Retail Unanchored 8,134,926
20 West Lampeter Townsh PA 17584 Retail Anchored 15,238,431
21 Belmont CA 94002 Industrial 14,000,000
22 Maple Heights OH 44137 Net Lease 13,756,464
23 Greenwood Village CO 80112 Retail Unanchored 12,985,696
24 Ocala FL 34475 Net Lease 11,257,025
25 Kent WA 98031 Multifamily 11,091,562
26 Malibu CA 90265 Retail Unanchored 10,581,350
27 Bannockburn IL 60015 Office 10,492,393
28 Mechanicsburg PA 17055 Hospitality Full Service 10,488,447
29 Kissimmee FL 34748 Mobile Home Park 10,380,836
30 University Place WA 98466 Multifamily 10,291,853
31 Gaithersburg MD 20878 Industrial 10,228,345
32 Texarkana AR 71854 Multifamily 3,785,180
32 Texarkana AR 75502 Multifamily 2,866,687
32 Camden AR 71701 Multifamily 2,170,502
32 Magnolia AR 71753 Multifamily 1,166,643
33 Delavan WI 53115 Retail Anchored 4,996,229
33 West Baraboo WI 53913 Retail Anchored 4,596,531
34 Boston MA 02128 Industrial 9,455,544
35 Washington DC 20024 Office Single Tenant 9,436,244
36 Lewisville TX 75067 Net Lease 9,314,279
37 Brooklyn NY 11224 Retail Anchored 9,290,316
38 Gloucester NJ 08030 Retail Anchored 9,093,968
39 Timonium MD 21093 Hospitality Full Service 8,990,810
40 Tacoma WA 98444 Multifamily 8,493,590
41 Glendale CA 91202 Multifamily 8,400,000
42 Chicago IL 60603 Hospitality Full Service 7,589,503
43 Evanston IL 60201 Hospitality Full Service 7,589,503
44 Los Angeles CA 90014 Office 7,494,707
45 Brookfield WI 53045 Office 7,390,724
46 Las Vegas NV 89104 Mobile Home Park 7,200,000
47 Dallas TX 75231 Net Lease 7,136,812
48 New Haven CT 06511 Hospitality Extended Stay 7,078,875
49 Houston TX 77090 Net Lease 6,957,911
50 Houston TX 77064 Net Lease 6,699,331
51 Los Gatos CA 95032 Hospitality Full Service 6,693,508
52 Tarzana CA 91356 Office 6,595,351
53 Little Falls/West Pa NJ 07424 Retail Anchored 6,586,437
54 Harmar Township PA 15238 Hospitality Limited Service 2,657,372
54 Harmer Township PA 15238 Hospitality Limited Service 1,962,862
54 Harmar Township PA 15238 Hospitality Limited Service 1,918,332
55 Los Angeles CA 90034 Multifamily 6,500,000
56 Wilton CT 06897 Mixed Use 3,796,214
56 Wilton CT 06897 Office 1,308,695
56 Wilton CT 06897 Mixed Use 1,288,715
57 New Britain CT 06051 Retail Anchored 6,393,433
58 Huntsville AL 35806 Hospitality Full Service 6,354,129
59 New Rochelle NY 10583 Retail Unanchored 2,198,393
59 Orangetown NY 10962 Retail Anchored 3,997,079
60 Washington Township NJ 08080 Retail Anchored 6,195,426
61 Columbia MA 21045 Retail Single Tenant 6,114,199
62 New York NY 10036 Hospitality Limited Service 5,957,845
63 Northvale NJ 07647 Industrial 2,974,808
63 Northvale NJ 07647 Industrial 2,974,808
64 El Paso TX 79912 Net Lease 5,855,974
65 Raleigh NC 27613 Retail Anchored 5,755,860
66 Orange CA 92669 Retail Unanchored 5,638,000
67 Valley View OH 44125 Net Lease 5,625,643
68 Durham NC 27713 Industrial 5,558,723
69 New York NY 10036 Office 5,495,943
70 Louisville KY 40218 Multifamily 5,495,902
71 Palm Desert CA 92260 Retail Unanchored 5,486,070
72 New York NY 10016 Multifamily 5,475,550
73 Shepherdsville KY 40165 Net Lease 1,807,011
73 Georgetown KY 40324 Net Lease 1,807,011
73 Corapolis PA 15108 Net Lease 1,807,011
74 New Castle DE 92309 Industrial 5,343,901
75 Tulsa OK 74136 Multifamily 5,196,086
76 Janesville WI 53545 Hospitality Limited Service 811,148
76 Madison WI 53704 Hospitality Limited Service 1,559,361
76 Waucksha WI 53186 Hospitality Limited Service 1,643,273
76 Madison WI 53704 Hospitality Limited Service 1,030,917
77 Louisville KY 40222 Multifamily 4,896,290
78 Duarte CA 91010 Multifamily 4,600,000
79 Philadelphia PA 19103 Net Lease 2,641,342
79 Philadelphia PA 19103 Net Lease 1,758,912
80 Clayton MO 63105 Office 4,395,178
81 Fishers IN 46256 Hospitality Extended Stay 4,395,096
82 Rancho Cucamonga CA 91730 Mixed Use 4,387,917
83 Calabasas CA 91302 Office 4,296,971
84 Aventura FL 33180 Net Lease 4,291,414
85 Amherst NY 14068 Office 4,247,241
86 Davie FL 33025 Net Lease 4,148,553
87 Miami FL 33169 Hospitality Full Service 4,094,449
88 Newport News VA 23602 Net Lease 4,005,484
89 Freehold NJ 07728 Hospitality Full Service 3,995,848
90 Union Township OH 45069 Multifamily 3,889,671
91 Albequerque NM 87111 Net Lease 3,887,373
92 Lowell MA 01852 Office 3,831,542
93 Albuquerque NM 87110 Net Lease 3,831,286
94 Hamilton NJ 08648 Retail Anchored 3,828,117
95 Lacey WA 98503 Multifamily 3,796,394
96 Natick MA 01760 Net Lease 3,671,358
97 Saint Joseph MO 64506 Retail Anchored 3,659,149
98 Parksville NY 12768 Hospitality Limited Service 3,596,961
99 Los Angeles CA 90064 Other Self-Storage 3,596,291
100 El Paso TX 79936 Net Lease 3,488,345
101 Paradise CA 95969 Assisted Living 3,487,244
102 El Paso TX 79925 Net Lease 3,484,438
103 West Covina CA 91791 Multifamily 3,450,000
104 Columbus IN 47274 Multifamily 3,448,916
105 San Jose CA 95112 Industrial 3,392,230
106 El Paso TX 79907 Net Lease 3,335,814
107 Franklin TN 39576 Retail Anchored 3,297,628
108 River CA 95626 Other Racquet Club 3,294,684
109 New York NY 10021 Multifamily 3,291,600
110 Carson CA 90745 Retail Unanchored 3,197,787
111 Lakeville CT 06039 Hospitality Limited Service 3,196,822
112 Hollywood CA 90069 Hospitality Limited Service 3,087,300
113 Huber Heights OH 45424 Multifamily 3,086,520
114 York NY 10028 Retail Single Tenant 3,068,610
115 Plano TX 75074 Net Lease 3,015,326
116 National City CA 91950 Assisted Living 2,997,302
117 Gautier MS 39553 Retail Anchored 2,947,880
118 Aurora CO 80014 Retail Unanchored 2,941,508
119 Spring Hill FL 34607 Mobile Home Park 2,897,882
120 Maumee OH 43537 Retail Anchored 2,824,901
121 Irvine CA 92612 Office 2,733,899
122 Greenville SC 29605 Net Lease 2,723,636
123 Lutz FL 33549 Multifamily 2,703,147
124 Santa Clara CA 95050 Industrial 2,695,167
125 Garland TX 75041 Hospitality Limited Service 2,693,936
126 Anaheim CA 92802 Net Lease 2,668,289
127 Hyannis MA 02601 Net Lease 2,659,530
128 Greenville SC 29615 Multifamily 2,642,493
129 Mobile AL 36608 Multifamily 2,638,649
130 Wichita KS 67203 Retail Anchored 2,595,544
131 Freeport ME 04032 Retail Anchored 2,471,008
132 Kingston NY 12401 Net Lease 2,410,663
133 Culpeper VA 22701 Net Lease 2,384,068
134 Irvine CA 92612 Office 2,310,515
135 Peoria IL 61602 Net Lease 2,232,301
136 Irvine CA 92612 Office 2,223,256
137 Garfield NJ 07026 Net Lease 2,210,521
138 Gretna LA 70056 Multifamily 2,205,392
139 West Columbia SC 29172 Industrial 2,195,741
140 Baltimore MD 21228 Retail Unanchored 2,189,683
141 Lilburn GA 30247 Net Lease 2,169,236
142 Peoria IL 61603 Net Lease 2,167,717
143 Tustin CA 92680 Office 2,146,355
144 El Paso TX 79903 Net Lease 2,120,742
145 Kernsville NC 27284 Net Lease 2,107,872
146 Colorado Springs CO 80916 Hospitality Limited Service 2,097,918
147 Acworth GA 30101 Net Lease 2,069,291
148 Peoria IL 61615 Net Lease 2,046,885
149 Elkin NC 28261 Net Lease 2,024,659
150 Greenville SC 29615 Multifamily 2,020,616
151 Augusta ME 04330 Net Lease 2,012,829
152 Seymour IN 47274 Multifamily 1,930,085
153 Ruidoso NM 88345 Net Lease 1,923,027
154 Miami FL 33176 Office 1,898,530
155 North Conway NH 03860 Net Lease 1,880,945
156 Monroe NC 28111 Net Lease 1,879,337
157 Astoria NY 11354 Retail Single Tenant 1,873,174
158 Washington Court Hou OH 43160 Net Lease 1,840,312
159 Monona WI 53713 Office 1,837,909
160 Anderson SC 29622 Net Lease 1,763,832
161 Cumming GA 30130 Net Lease 1,763,399
162 Philadelphia PA 19138 Net Lease 1,761,774
163 Jonesboro GA 30260 Net Lease 1,736,367
164 Burnsville NC 28714 Net Lease 1,728,085
165 Fairfield NJ 07004 Industrial 1,701,939
166 Gaston NC 28052 Net Lease 1,677,618
167 Irvine CA 92612 Office 1,627,376
168 Athens WV 24712 Net Lease 1,596,647
169 Oxford MA 01540 Net Lease 1,575,943
170 Pensacola FL 32526 Retail Anchored 1,549,406
171 Jonesboro GA 30236 Net Lease 1,536,837
172 Irvine CA 92612 Office 1,531,351
173 Irvine CA 92612 Office 1,496,100
174 Mesa AZ 85205 Other Self-Storage 1,470,942
175 Lake Jackson TX 77566 Multifamily 1,449,077
176 Atlanta GA 30309 Multifamily 1,394,043
177 Monaca (Center Towns) PA 10561 Multifamily 1,347,430
178 Hinesville GA 31313 Net Lease 1,340,932
179 South Pasadena FL 33707 Retail Single Tenant 1,309,059
180 Scottsdale AZ 85254 Retail Unanchored 1,277,941
181 Claxton GA 30417 Net Lease 1,237,929
182 Holyoke MA 01040 Office 649,568
182 Holyoke MA 01040 Multifamily 499,668
183 San Diego CA 92115 Retail Single Tenant 1,049,295
184 Klamath Falls OR 97603 Other Self-Storage 996,899
185 Irvine CA 92612 Other Restaurant 545,003
TOTAL 1,465,991,814
</TABLE>
<TABLE>
<CAPTION>
Net Applicable Orignial Cut-Off
Loan Property Mortgage Mortgage Primary Int Principal Principal
Nos Name Rage Rate Servicing Calc Balance Balance
- --- ------------- ------- -------- --------- ------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
1 MGM Plaza 7.6400 7.5900 .0500 Act/360 146,000,000 145,894,648
2 135 East 57th Street 8.6600 8.6100 .0500 Act/360 75,000,000 75,000,000
3 Paramount Hotel 8.2600 8.2600 .0000 Act/360 74,000,000 73,867,407
4 Beverly Connection 8.1200 8.0700 .0500 Act/360 63,000,000 63,000,000
5 The Gift Center & Jewelry Mart 7.7400 7.6900 .0500 Act/360 43,000,000 42,969,590
6 Embassy Suites Hotel - Washington, DC 7.5200 7.4700 .0500 Act/360 37,100,000 37,100,000
7 Ramada Suites Hotel at Lincoln Harbor 7.5600 7.5100 .0500 Act/360 33,500,000 33,462,179
8 Market-Post Tower 9.0100 8.9500 .0600 Act/360 32,000,000 31,935,966
9 78 Corporate Center 7.4100 7.3600 .0500 Act/360 32,000,000 31,834,631
10 240 West 40th Street 7.5800 7.5300 .0500 Act/360 25,000,000 25,000,000
11 Stone Mountain Square Shopping Center 7.4200 7.3700 .0500 Act/360 24,000,000 23,981,901
12 Buena Vista Plaza 8.4900 8.4400 .0500 Act/360 21,400,000 21,348,483
13 KMart Store #4983 - San Jose 8.2954 8.2454 .0500 30/360 20,046,310 20,026,222
14 Mesa Regal RV Resort 8.9200 8.8700 .0500 Act/360 18,500,000 18,465,911
15 Johnson City Crossing Shopping Center 7.4200 7.3700 .0500 Act/360 18,250,000 18,236,237
16 KMart Store #4990 - Canton, MI 8.2276 8.1776 .0500 30/360 17,559,252 17,541,461
17 131 State Street 9.1100 9.0600 .0500 Act/360 16,500,000 16,433,341
18 Dara Gardens Cooperative 7.6900 7.2100 .4800 30/360 16,362,000 16,350,311
19 Holiday Inn/One RT 46-Summary 8.1000 8.0500 .0500 Act/360 15,500,000 15,471,333
20 Kendig Square Shopping Center 7.3900 7.3400 .0500 Act/360 15,250,000 15,238,431
21 1515 Industrial Way 7.4600 7.4100 .0500 Act/360 14,000,000 14,000,000
22 KMart Store #4991 - Maple Heights, OH 8.2276 8.1776 .0500 30/360 13,770,416 13,756,464
23 Arapahoe East 7.7200 7.6800 .0400 Act/360 13,000,000 12,985,696
24 Cobb Theaters - Ocala, FL 8.6104 8.5604 .0500 30/360 11,263,143 11,257,025
25 Court of Flags Apartments 7.3800 7.3300 .0500 Act/360 11,100,000 11,091,562
26 Malibu Creek Plaza 8.1000 8.0500 .0500 Act/360 10,600,000 10,581,350
27 Bannockburn Executive Plaza 7.6200 7.5700 .0500 Act/360 10,500,000 10,492,393
28 Holiday Inn-Harrisburg West 7.7200 7.6700 .0500 Act/360 10,500,000 10,488,447
29 Sherwood Forrest 8.9200 8.8700 .0500 Act/360 10,400,000 10,380,836
30 Polo Club Apartments 7.1800 7.1300 .0500 Act/360 10,300,000 10,291,853
31 NorthTech Business Park 8.2500 8.2000 .0500 Act/360 10,250,000 10,228,345
32 Fox Creek-Summary 8.0800 8.0300 .0500 Act/360 10,000,000 9,989,012
33 Delevan/Westday1-Summary 7.4200 7.3700 .0500 Act/360 9,600,000 9,592,761
34 Logan Industrial Park 9.0100 8.9600 .0500 Act/360 9,500,000 9,455,544
35 Waterfront Centre 8.5700 8.5700 .0000 Act/360 9,468,342 9,436,244
36 Garden Ridge 8.3453 8.2953 .0500 Act/360 9,326,339 9,314,279
37 Brighton Beach Shopping Center 8.0600 8.0100 .0500 30/360 9,300,000 9,290,316
38 Commerce Plaza III 8.0600 8.0100 .0500 Act/360 9,100,000 9,093,968
39 Timonium Holiday Inn Select 8.1800 8.1300 .0500 Act/360 9,000,000 8,990,810
40 Eagles Landing 7.4200 7.3700 .0500 Act/360 8,500,000 8,493,590
41 Lorraine Apartments 7.7700 7.7700 .0000 Act/360 8,400,000 8,400,000
42 Best Western Grant Park Hotel 8.6800 8.6800 .0000 Act/360 7,600,000 7,589,503
43 The Evanston Holiday Inn & Conference Cen 8.6800 8.6800 .0000 Act/360 7,600,000 7,589,503
44 Fox Jewelry Plaza and Los Angeles Theatre 7.7500 7.7100 .0400 Act/360 7,500,000 7,494,707
45 Wellington Centre 7.5800 7.5300 .0500 Act/360 7,400,000 7,390,724
46 Boulder Cascade Mobile Home Park 8.7050 8.6550 .0500 Act/360 7,200,000 7,200,000
47 KMart Store #3718 - Dallas, Tx - Skillman 8.2276 8.1776 .0500 30/360 7,144,050 7,136,812
48 Residence Inn by Marriott - New Haven, CT 7.6700 7.6700 .0000 Act/360 7,100,000 7,078,875
49 KMart Store #3863 - Houston, Tx - Cypress 8.2276 8.1776 .0500 30/360 6,964,967 6,957,911
50 KMart Store #3809 - Houston, Tx - Willowb 8.2276 8.1776 .0500 30/360 6,706,125 6,699,331
51 Los Gatos Lodge 8.5000 8.3750 .1250 Act/360 6,700,000 6,693,508
52 Tarzana Medical Office Building 7.7600 7.7200 .0400 Act/360 6,600,000 6,595,351
53 Lenox Plaza Shopping Center 8.3500 8.3000 .0500 Act/360 6,600,000 6,586,437
54 Kratsa Hotels-Summary 8.3900 8.3400 .0500 Act/360 6,550,000 6,538,566
55 The Sedona Apartments 7.5000 7.4500 .0500 Act/360 6,500,000 6,500,000
56 Kent Park-Executive House-Summary 8.3300 8.2800 .0500 Act/360 6,400,000 6,393,623
57 Newbrite Shopping Center 8.1500 8.1000 .0500 Act/360 6,400,000 6,393,433
58 Holiday Inn-Huntsville, AL 8.7400 8.6900 .0500 Act/360 6,375,000 6,354,129
59 Donnybrook/Orangeburg Summary 7.5800 7.5300 .0500 Act/360 6,200,000 6,195,472
60 Washington Centre 7.5300 7.4800 .0500 Act/360 6,200,000 6,195,426
61 Dick's Clothing & Sporting Goods Store 8.6100 8.5600 .0500 Act/360 6,120,000 6,114,199
62 Hampshire Ambassador Hotel 9.3800 9.3800 .0000 Act/360 6,000,000 5,957,845
63 Stonehurst/Zenith-Summary 8.8900 8.8400 .0500 Act/360 5,959,000 5,949,616
64 Furr's - Mesa (946) 9.1100 9.0600 .0500 Act/360 5,855,974 5,855,974
65 Brandywine - Towne North Plaza 7.6600 7.6100 .0500 Act/360 5,760,000 5,755,860
66 Saddleback Plaza 7.8000 7.7500 .0500 Act/360 5,638,000 5,638,000
67 Union Camp 7.5781 7.5281 .0500 30/360 5,618,551 5,625,643
68 RM-Research Triangle 8.0600 8.0100 .0500 Act/360 5,575,000 5,558,723
69 Plaza Arcade 7.5300 7.4800 .0500 Act/360 5,500,000 5,495,943
70 Autumn Run Apartments 7.4800 7.4300 .0500 Act/360 5,500,000 5,495,902
71 El Paseo North 8.2500 8.2000 .0500 Act/360 5,500,000 5,486,070
72 443 Third Avenue 8.2200 8.1700 .0500 Act/360 5,500,000 5,475,550
73 Motel 6-Summary 8.4910 8.4410 .0500 Act/360 5,421,033 5,421,033
74 Amazon.com Building 7.5000 7.4500 .0500 Act/360 5,350,000 5,343,901
75 Southern Slope Apartments 7.4300 7.3800 .0500 Act/360 5,200,000 5,196,086
76 Select Inn-Summary 8.0100 7.9600 .0500 Act/360 5,050,000 5,044,699
77 RM-Camelot East Apartments 7.4000 7.3500 .0500 Act/360 4,900,000 4,896,290
78 Bradbury Apartments 7.7700 7.7700 .0000 Act/360 4,600,000 4,600,000
79 Victoria's Secret/Limited Express Summary 6.5280 6.4780 .0500 Act/360 4,633,539 4,400,254
80 Heartland Place 8.0900 7.8400 .2500 Act/360 4,400,000 4,395,178
81 Residence Inn by Marriott - Fishers, IN 7.6400 7.5900 .0500 Act/360 4,400,000 4,395,096
82 Inland Business Center 8.3900 8.3400 .0500 Act/360 4,400,000 4,387,917
83 Parkway Plaza Office Building 7.7600 7.6800 .0800 Act/360 4,300,000 4,296,971
84 BALLY'S-Miami, Florida 9.3551 9.3051 .0500 Act/360 4,314,170 4,291,414
85 RM-St. Rita's Office Building 7.8200 7.7700 .0500 Act/360 4,250,000 4,247,241
86 BALLY'S-Davie, Florida 9.3551 9.3051 .0500 Act/360 4,170,552 4,148,553
87 Howard Johnson Hotel 9.5900 9.5400 .0500 Act/360 4,100,000 4,094,449
88 BALLY'S-Virginia 9.3551 9.3051 .0500 Act/360 4,026,724 4,005,484
89 Freehold Gardens Hotel 8.0800 8.0300 .0500 Act/360 4,000,000 3,995,848
90 RM-The Fountains Apartments 8.5000 8.4500 .0500 Act/360 3,900,000 3,889,671
91 Furr's - Eubank (875) 9.1100 9.0600 .0500 Act/360 3,887,373 3,887,373
92 Boott Mills South and Storage 8.5500 8.5000 .0500 Act/360 3,839,000 3,831,542
93 Furr's - Louisiana (876) 9.1100 9.0600 .0500 Act/360 3,831,286 3,831,286
94 Quakerbridge Shoppes Shopping Center 7.4800 7.4300 .0500 Act/360 3,832,500 3,828,117
95 Emerald Pointe Apartments 7.0800 7.0300 .0500 Act/360 3,800,000 3,796,394
96 CVS - Natick, MA 7.0438 6.9938 .0500 Act/360 3,684,207 3,671,358
97 Northgate Plaza 8.5100 8.4600 .0500 Act/360 3,669,000 3,659,149
98 Paramount Best Western 9.3300 9.2800 .0500 Act/360 3,600,000 3,596,961
99 Los Angeles Fine Arts & Wine Storage Comp 8.1250 7.9475 .1775 Act/360 3,600,000 3,596,291
100 Furr's - Geo. Dieter (938) 9.1100 9.0600 .0500 Act/360 3,488,346 3,488,345
101 Heritage Paradise 8.2100 8.1600 .0500 Act/360 3,500,000 3,487,244
102 Furr's - Viscount (937) 9.1100 9.0600 .0500 Act/360 3,484,438 3,484,438
103 Citrus Park Apartments 7.5000 7.5000 .0000 Act/360 3,450,000 3,450,000
104 RM-Williamsburg North 7.9000 7.8500 .0500 Act/360 3,455,000 3,448,916
105 Spartan Business Center 7.9200 7.8700 .0500 Act/360 3,400,000 3,392,230
106 Furr's Americas (944) 9.1100 9.0600 .0500 Act/360 3,335,814 3,335,814
107 Brandywine - Alexander Plaza II 7.6600 7.6100 .0500 Act/360 3,300,000 3,297,628
108 Gold River Racquet Club 8.4200 8.3700 .0500 Act/360 3,300,000 3,294,684
109 1278-1284 First Avenue 8.7900 8.7400 .0500 Act/360 3,300,000 3,291,600
110 Bonita Center 7.8500 7.8000 .0500 Act/360 3,200,000 3,197,787
111 Interlaken Inn 8.3500 8.3000 .0500 Act/360 3,200,000 3,196,822
112 Le Reve Hotel 9.3000 9.2500 .0500 Act/360 3,100,000 3,087,300
113 RM-Wayne Estates 8.4000 8.3500 .0500 Act/360 3,095,000 3,086,520
114 Rite Aid - 86th, New York, NY 8.3100 8.2600 .0500 Act/360 3,075,000 3,068,610
115 Eckerd's Drug Store - Plano, TX 7.9360 7.8860 .0500 30/360 3,040,542 3,015,326
116 Windsor Gardens 8.9500 8.9500 .0000 Act/360 3,000,000 2,997,302
117 Brandywine - Clear Point Plaza 7.6600 7.6100 .0500 Act/360 2,950,000 2,947,880
118 Havana Park Center 7.3700 7.3200 .0500 Act/360 2,943,750 2,941,508
119 Brandywine - Windward Village 7.5800 7.5300 .0500 Act/360 2,900,000 2,897,882
120 Maumee Marketplace 9.3200 9.2700 .0500 Act/360 2,830,000 2,824,901
121 Colton-2302 Martin 8.1600 8.1100 .0500 Act/360 2,741,026 2,733,899
122 CVS Pharmacy - Greenville, SC 6.6572 6.6572 .0000 30/360 2,724,101 2,723,636
123 RM-Players Club 8.4800 8.4300 .0500 Act/360 2,710,000 2,703,147
124 Lafayette Business Park 8.0300 7.9800 .0500 Act/360 2,700,000 2,695,167
125 Comfort Inn - Garland 9.4300 9.3800 .0500 Act/360 2,700,000 2,693,936
126 7-Eleven - Anaheim, CA 8.3825 8.3325 .0500 Act/360 2,676,386 2,668,289
127 CVS Pharmacy - Hyannis, MA 6.5886 6.5886 .0000 30/360 2,659,530 2,659,530
128 RM-The Villa Apartments 8.3000 8.2500 .0500 Act/360 2,650,000 2,642,493
129 RM-Stonegate Townhomes 8.4300 8.3800 .0500 Act/360 2,645,000 2,638,649
130 Marina Lakes Plaza 8.4800 8.4300 .0500 Act/360 2,600,000 2,595,544
131 8 Bow Street 8.4100 8.3600 .0500 Act/360 2,475,000 2,471,008
132 Rite Aid - Kingston, NY 6.9705 6.9205 .0500 Act/360 2,420,599 2,410,663
133 CVS Pharmacy - Culpeper, Va 6.6553 6.6553 .0000 30/360 2,384,475 2,384,068
134 Colton-18952 MacArthur Blvd. 8.1600 8.1100 .0500 Act/360 2,316,538 2,310,515
135 Hook-SupeRx, Inc. - Knoxville Street, Peo 6.5710 6.5710 .0000 30/360 2,232,301 2,232,301
136 Colton-18872 MacArthur Blvd. 8.1600 8.1100 .0500 Act/360 2,229,051 2,223,256
137 CVS-Garfield, NJ 6.8083 6.7583 .0500 Act/360 2,210,521 2,210,521
138 Arbor Place Apartments 7.4800 7.3800 .1000 Act/360 2,210,000 2,205,392
139 RM-Inducon Columbia 7.8670 7.8170 .0500 Act/360 2,200,000 2,195,741
140 Westpark Shopping Center 9.0000 8.9500 .0500 Act/360 2,200,000 2,189,683
141 CVS Pharmacy - Lilburn, Ga 6.8062 6.8062 .0000 30/360 2,169,619 2,169,236
142 Hook-SupeRx, Inc - Prospect Road, Peoria, 6.5710 6.5710 .0000 30/360 2,167,717 2,167,717
143 Tustin Plaza 8.5000 8.4500 .0500 Act/360 2,150,000 2,146,355
144 Furr's - Montana (934) 9.1100 9.0600 .0500 Act/360 2,120,742 2,120,742
145 CVS Pharmacy - Kernsville, NC 6.5730 6.5730 .0000 30/360 2,107,872 2,107,872
146 Comfort Inn Hotel 8.3600 8.3100 .0500 Act/360 2,100,000 2,097,918
147 Eckerd's Drug Store - Acworth 6.9832 6.9332 .0500 Act/360 2,076,649 2,069,291
148 Hook-SupeRx, Inc - Big Hollow Road, Peori 6.5710 6.5710 .0000 30/360 2,046,885 2,046,885
149 Revco Discount Drug Center - Elkin, NC 6.5526 6.5526 .0000 30/360 2,024,659 2,024,659
150 RM-O'Hara Apartments 8.2900 8.2400 .0500 Act/360 2,025,000 2,020,616
151 Rite Aid - Augusta, ME 7.0161 6.9661 .0500 30/360 2,016,439 2,012,829
152 RM-Jackson Park 8.3100 8.2600 .0500 Act/360 1,935,000 1,930,085
153 Furr's - Ruidoso (905) 9.1100 9.0600 .0500 Act/360 1,923,027 1,923,027
154 Kendall Professional Building 7.2900 7.2400 .0500 Act/360 1,900,000 1,898,530
155 CVS Pharmacy - North Conway, NH 7.0825 7.0825 .0000 30/360 1,881,852 1,880,945
156 CVS Pharmacy - Monroe, NC 6.8062 6.8062 .0000 30/360 1,879,670 1,879,337
157 Seaman's Furniture 8.4700 8.4200 .0500 Act/360 1,875,000 1,873,174
158 Revco Discount Drug Center - Washington C 6.8772 6.8272 .0500 30/360 1,840,621 1,840,312
159 South Towne Office Park 7.5200 7.4700 .0500 Act/360 1,840,000 1,837,909
160 CVS Pharmacy - Anderson, SC 7.0573 7.0573 .0000 30/360 1,764,705 1,763,832
161 CVS Pharmacy - Cumming, Ga 6.9443 6.9443 .0000 30/360 1,764,586 1,763,399
162 CVS Pharmacy - Philadelphia, PA 6.7665 6.7665 .0000 30/360 1,762,981 1,761,774
163 Rite Aid - Jonesboro, Battle Creek 6.9461 6.8961 .0500 30/360 1,743,359 1,736,367
164 CVS Pharmacy - Burnsville, NC 6.6729 6.6729 .0000 30/360 1,728,379 1,728,085
165 Airport Plaza 8.2500 8.2000 .0500 Act/360 1,705,000 1,701,939
166 Rite Aid - Gastonia, NC 7.3030 7.2530 .0500 30/360 1,687,906 1,677,618
167 Colton Plaza 8.1600 8.1100 .0500 Act/360 1,631,619 1,627,376
168 CVS Pharmacy - Athens, WV 6.5886 6.5886 .0000 30/360 1,596,647 1,596,647
169 CVS Pharmacy - Oxford, Ma 6.7741 6.7741 .0000 30/360 1,576,752 1,575,943
170 Saufley Square Shopping Center 8.4400 8.3900 .0500 Act/360 1,554,000 1,549,406
171 Rite Aid - Jonesboro, Flint 6.7417 6.6917 .0500 Act/360 1,536,837 1,536,837
172 Colton-2222 Martin Street 8.1600 8.1100 .0500 Act/360 1,535,343 1,531,351
173 2192 Martin 8.1600 8.1100 .0500 Act/360 1,500,000 1,496,100
174 A-Secured Self and Vehicle Storage Facili 8.3800 8.2550 .1250 Act/360 1,475,000 1,470,942
175 Casa Del Lago Apartments 8.2600 8.2100 .0500 Act/360 1,450,000 1,449,077
176 Peachtree Apartments 8.4300 8.3800 .0500 Act/360 1,400,000 1,394,043
177 RM-Beaver Creek 8.2300 8.1800 .0500 Act/360 1,350,000 1,347,430
178 Rite Aid - Hinesville 8.1700 8.1200 .0500 30/360 1,350,000 1,340,932
179 Brandywine - Kash N'Karry, Pasadena 7.6600 7.6100 .0500 Act/360 1,310,000 1,309,059
180 North Ranch Center 8.4600 8.4100 .0500 Act/360 1,280,000 1,277,941
181 Rite Aid - Claxton, GA 8.5700 8.5200 .0500 30/360 1,250,000 1,237,929
182 Caldonian/Transcript-Summary 8.0500 8.0000 .0500 Act/360 1,150,000 1,149,236
183 Hollywood Video 8.0000 7.8700 .1300 Act/360 1,050,000 1,049,295
184 AAA-Discount Storage 9.0000 8.9500 .0500 Act/360 1,000,000 9,968,899
185 Colton-Chanteclair Restaurant 8.1600 8.1100 .0500 Act/360 546,424 545,003
TOTAL 1,465,991,814
</TABLE>
<TABLE>
<CAPTION>
(table continued)
Orig. Rem
Term Term Stated Orig Rem
Loan Stated Stated Maturity Antic Amort Amort Monthly
Nos Maturity Maturity Dated Repay Date Term Term Payment
- ---- -------- -------- --------- ---------- ------- ----- -------
<S> <C> <C> <C> <C> <C> <C> <C>
1 360 359 11/11/27 11/11/04 360 359 1,034,885.82
2 384 381 09/11/29 09/11/07 360 360 585,210.96
3 300 298 10/11/22 10/11/07 300 298 583,947.68
4 360 357 09/11/27 09/11/07 336 336 475,639.12
5 361 360 12/11/27 12/11/07 360 359 307,760.17
6 300 300 12/11/22 12/11/07 300 300 274,648.55
7 300 299 11/11/22 11/11/07 300 299 248,870.95
8 360 355 07/11/27 07/11/07 360 355 257,709.52
9 422 421 01/11/33 05/11/14 422 421 283,333.33
10 360 360 12/11/27 11/11/12 360 360 176,175.17
11 360 359 11/11/27 11/11/07 360 359 166,498.72
12 360 356 08/11/07 08/11/07 339 335 166,679.12
13 300 299 11/01/22 / / 300 299 158,663.96
14 333 318 06/01/24 09/01/03 333 330 150,322.66
15 360 359 11/11/27 11/11/07 360 359 126,608.40
16 300 299 11/01/22 / / 300 299 138,182.68
17 340 332 08/01/25 04/01/07 342 334 135,459.88
18 180 179 11/01/12 / / 360 359 116,541.70
19 300 298 10/11/22 10/11/07 300 298 120,660.12
20 360 359 11/11/27 11/11/12 360 359 105,483.90
21 360 360 12/11/27 12/11/07 360 360 97,506.86
22 300 299 11/01/22 / / 300 299 108,366.40
23 300 299 11/11/22 11/11/07 300 299 97,936.84
24 299 298 10/11/22 / / 300 299 88,330.00
25 360 359 11/11/27 11/11/07 360 359 76,702.77
26 360 357 09/11/27 09/11/07 360 357 78,519.26
27 360 359 11/11/27 11/11/12 360 359 74,282.23
28 300 299 11/11/22 11/11/07 300 299 79,102.83
29 333 318 06/01/24 09/01/03 333 330 84,505.71
30 360 359 11/11/27 11/11/07 360 359 69,775.79
31 360 356 08/11/27 08/11/07 360 356 77,004.83
32 360 358 10/11/27 10/11/07 360 358 73,934.92
33 360 359 11/11/27 11/11/07 360 359 66,599.49
34 300 294 06/11/22 06/11/07 300 294 79,788.72
35 301 297 09/11/22 09/11/07 300 296 76,688.81
36 275 274 10/11/20 / / 267 266 76,919.44
37 300 299 11/11/22 11/11/07 300 299 72,148.96
38 360 359 11/01/27 11/11/07 360 359 67,153.59
39 300 299 11/11/22 11/11/07 300 299 70,540.03
40 360 359 11/11/27 11/11/07 360 359 58,968.30
41 360 356 08/11/27 08/11/07 336 336 61,411.77
42 300 298 10/11/22 10/11/07 300 298 61,121.88
43 300 298 10/11/22 10/11/07 300 298 61,121.88
44 360 359 11/11/27 11/11/12 360 359 53,730.92
45 360 358 10/11/27 10/11/12 360 358 52,147.85
46 360 350 02/01/27 02/01/04 360 360 56,411.18
47 300 299 11/01/22 / / 300 299 56,220.16
48 180 179 11/11/12 11/11/07 180 179 66,505.64
49 300 299 11/01/22 / / 300 299 54,810.87
50 300 299 11/01/22 / / 300 299 52,773.90
51 300 299 11/11/22 11/11/07 300 299 53,950.22
52 360 359 11/11/27 11/11/07 360 359 47,328.82
53 360 356 08/11/27 08/11/07 360 356 50,048.34
54 300 298 10/11/22 10/11/07 300 298 52,257.72
55 360 359 11/11/27 11/11/07 336 336 46,336.39
56 300 299 11/11/22 11/11/07 300 299 50,803.42
57 300 299 11/11/22 10/11/07 300 299 50,033.87
58 300 296 08/11/22 08/01/06 300 296 52,368.35
59 360 359 11/11/27 11/11/07 360 359 43,691.44
60 360 359 11/11/27 11/11/07 360 359 43,478.74
61 360 358 10/11/27 10/11/07 360 358 47,535.43
62 257 251 11/11/18 06/11/07 252 246 54,570.24
63 300 298 10/11/22 10/11/07 300 298 49,559.61
64 264 264 12/11/19 11/11/07 265 265 47,209.40
66 360 359 11/11/27 11/11/07 360 359 40,907.69
67 120 120 12/01/07 / / 300 300 42,770.68
68 299 293 05/01/22 / / 299 293 34,318.00
69 300 297 09/11/22 03/11/06 300 297 43,250.58
70 360 359 11/11/27 11/11/07 360 359 38,569.35
71 360 359 11/11/27 11/11/07 360 359 38,381.50
72 360 356 08/11/27 08/11/07 360 356 41,319.66
73 300 295 07/11/22 07/11/07 360 355 43,254.55
74 221 221 05/11/16 / / 222 222 40,760.62
75 300 299 11/11/22 11/11/07 300 299 39,536.03
76 360 359 11/11/27 11/11/07 360 359 36,110.23
77 300 299 11/11/22 12/11/07 300 299 39,010.18
78 360 359 11/11/27 05/11/06 360 359 33,926.61
79 360 356 08/11/27 08/11/07 336 336 33,630.25
80 80 74 02/11/04 / / 80 74 69,018.40
81 360 358 10/11/27 10/11/07 360 358 32,562.13
82 300 299 11/11/22 11/11/07 300 299 32,917.35
83 300 297 09/11/22 09/11/07 300 297 35,104.42
84 359 358 10/11/27 10/11/07 360 359 30,835.45
85 245 240 12/11/17 / / 245 240 38,789.00
86 360 359 11/11/27 11/11/07 370 369 30,454.90
87 245 240 12/11/17 / / 245 240 37,497.75
88 300 298 10/11/22 10/11/07 300 298 36,078.40
89 245 240 12/11/17 / / 245 240 36,204.58
90 300 299 11/11/22 11/11/07 300 299 31,084.93
91 360 354 06/01/27 12/01/05 360 354 29,987.63
92 264 264 12/11/19 11/11/07 265 265 32,150.69
93 360 356 08/11/27 08/11/07 360 356 29,654.73
93 264 264 12/11/19 11/11/07 265 265 31,979.55
94 300 299 11/11/22 11/11/07 300 299 28,272.00
95 360 359 11/11/27 11/11/07 360 359 25,485.99
96 243 241 01/11/18 / / 243 241 28,031.14
97 300 297 09/11/22 09/11/07 300 297 29,568.51
98 300 299 11/11/22 11/11/07 300 299 31,028.71
99 300 299 11/11/22 11/11/07 300 299 28,084.00
100 264 264 12/11/19 11/11/07 265 265 29,113.57
101 300 296 08/11/22 08/11/07 300 296 27,502.27
102 264 264 12/11/19 11/11/07 265 265 29,113.75
103 360 359 11/11/27 11/11/07 336 336 24,593.93
104 360 356 08/11/27 01/11/06 360 356 25,136.44
105 360 356 08/11/27 08/11/07 360 356 24,758.64
106 264 264 12/11/19 11/11/07 265 265 27,717.53
107 360 359 11/11/27 11/11/07 360 359 23,436.70
108 241 240 12/11/17 12/11/07 240 239 28,471.30
109 300 297 09/11/22 09/11/04 300 297 27,220.48
110 360 359 11/11/27 11/11/07 360 359 23,146.72
111 300 299 11/11/22 11/11/07 300 299 25,444.61
112 240 237 09/11/17 09/11/07 240 237 28,492.41
113 360 354 06/01/27 12/01/05 360 354 23,578.88
114 360 356 08/11/27 08/11/07 360 356 23,231.28
115 235 229 01/11/17 / / 235 229 24,241.80
116 300 299 11/11/22 11/11/07 300 299 25,073.25
117 360 359 11/11/27 11/11/07 360 359 20,950.99
118 360 359 11/11/27 11/11/07 360 359 20,321.72
119 360 359 11/11/27 11/11/07 360 359 20,436.32
120 360 355 07/11/27 07/11/07 360 355 23,425.41
121 360 355 07/11/27 07/11/07 360 355 20,419.24
122 246 245 05/06/18 / / 246 245 15,577.47
123 360 354 06/11/27 12/11/05 360 354 20,823.92
124 360 357 09/11/27 09/11/07 360 357 19,868.14
125 300 297 09/11/22 09/11/07 300 297 23,458.56
126 195 192 12/11/13 / / 195 192 21,583.33
127 246 246 06/06/18 / / 246 246 15,059.28
128 360 354 06/01/27 12/01/05 360 354 20,001.79
129 360 355 07/11/27 12/11/05 360 355 20,206.69
130 300 298 10/11/22 10/11/07 300 298 20,900.87
131 240 239 11/11/17 11/11/07 240 239 21,337.85
132 230 228 12/11/16 / / 226 224 19,250.00
133 246 245 05/06/18 / / 246 245 13,631.61
134 360 355 07/11/27 07/11/07 360 355 17,257.02
135 246 246 06/06/18 / / 246 246 12,643.70
136 360 355 07/11/27 07/11/07 360 355 16,605.29
137 232 232 04/11/17 / / 233 233 16,618.75
138 300 298 10/11/22 10/11/07 300 298 16,302.97
139 300 298 10/11/22 04/11/06 300 298 16,786.58
140 300 294 06/11/22 06/11/07 300 294 18,462.32
141 246 245 05/06/18 / / 246 245 12,668.76
142 246 246 06/06/18 / / 246 246 12,277.90
143 360 357 09/11/27 08/11/07 360 357 16,531.64
144 264 264 12/11/19 11/11/07 265 265 17,721.42
145 246 246 06/06/18 / / 246 246 11,908.68
146 300 299 11/11/22 11/11/07 300 299 16,712.11
147 233 231 03/11/17 / / 233 231 15,954.68
148 246 246 06/06/18 / / 246 246 11,593.51
149 246 246 06/06/18 / / 246 246 11,402.90
150 360 354 06/07/27 12/01/05 360 354 15,296.13
151 238 237 09/11/17 / / 238 237 15,793.33
152 360 354 06/11/27 12/11/05 360 354 14,637.86
153 241 240 12/11/17 11/11/07 241 240 15,719.28
154 360 359 11/11/27 11/11/07 360 359 13,012.94
155 245 242 02/06/18 / / 245 242 11,407.36
156 246 245 05/06/18 / / 246 245 10,993.02
157 300 299 11/11/22 11/11/07 300 299 15,060.12
158 245 244 04/06/18 / / 245 244 10,858.19
159 300 299 11/11/22 11/11/07 300 299 13,621.38
160 246 243 03/06/18 / / 246 243 10,667.84
161 245 241 01/06/18 / / 245 241 10,505.66
162 245 241 01/06/18 / / 245 241 10,240.21
163 240 238 10/11/17 / / 236 234 13,577.21
164 246 245 05/06/18 / / 246 245 9,905.69
165 300 298 10/11/22 10/11/07 300 298 13,443.07
166 233 230 02/11/17 / / 229 226 13,680.98
167 360 355 07/11/27 07/11/07 360 355 12,154.73
168 246 246 06/06/18 / / 246 246 9,040.83
169 245 242 02/06/18 / / 245 242 9,168.84
170 300 297 09/11/22 09/11/07 300 297 12,450.46
171 240 239 11/11/17 / / 240 239 11,776.56
172 360 355 07/11/27 07/11/07 360 355 11,437.52
173 360 355 07/11/27 07/11/07 360 355 11,174.23
174 300 297 09/11/22 09/11/07 300 297 11,758.06
175 360 359 11/11/27 11/11/07 360 359 10,903.56
176 300 295 07/11/22 07/11/07 300 295 11,207.21
177 360 355 07/11/27 12/11/05 360 355 10,136.75
178 239 235 07/11/17 / / 240 236 11,435.20
179 360 359 11/11/27 11/11/07 360 359 9,303.66
180 360 357 09/11/27 08/11/07 360 357 9,805.83
181 240 234 06/11/17 / / 233 227 11,035.36
182 360 359 11/11/27 11/11/07 360 359 8,478.41
183 360 359 11/27/27 11/11/07 360 359 7,704.53
184 300 296 08/11/22 08/11/07 300 296 8,391.96
185 360 355 07/11/27 07/11/07 360 355 4,070.58
</TABLE>
<TABLE>
<CAPTION>
Cut-Off Cut-
Loan Morgagor Property Principal Orig Off
Nos. Name Name Balance Value LTV
- ---- -------- -------- --------- --------- ---
<S> <C> <C> <C> <C> <C>
1 Colorado Place Partners, LLC MGM Plaza 145,894,648 325,000,000 45
2 135 East 57th Street LLC 135 East 57th Street 75,000,000 120,000,000 63
3 Century Paramount LLC Paramount Hotel 73,867,407 103,000,000 72
4 The Beverly Connection LLC Beverly Connection 63,000,000 84,000,000 75
5 Buchanan Street Associates, LP The Gift Center & Jewelry Mart 42,969,590 55,700,000 77
6 SES/D.C. Venture, a District of Columbia Embassy Suites Hotel - Washington, DC 37,100,000 51,000,000 73
7 River-PW Hotel Limited Partnership Ramada Suites Hotel at Lincoln Harbor 33,462,179 38,200,000 72
8 Market-Post Tower, Inc. Market-Post Tower 31,935,966 49,200,000 65
9 EM Realty Associates, L.L.C. 78 Corporate Center 31,834,631 40,000,000 80
10 240 West 40th LLC 240 West 40th Street 25,000,000 35,000,000 71
11 New Ronstone, LLC Stone Mountain Square Shopping Center 23,981,901 27,300,000 74
12 Ryanco Partners, Ltd. No. X Buena Vista Plaza 21,348,483 31,000,000 69
13 CRICKM San Jose Trust KMart Store #4983 - San Jose 20,026,222 0 0
14 ELL-CAP 84-Associates LP & ELL-CAP 84 Me Mesa Regal RV Resort 18,465,911 29,475,000 63
15 New Johnson City Crossing, LLC Johnson City Crossing Shopping Center 18,236,237 24,400,000 75
16 CRICKM Canton Township Trust KMart Store #4990 - Canton, MI 17,541,461 0 0
17 State 131 Limited Partnership 131 State Street 16,433,341 25,300,000 65
18 Dara Owners Corp. Dara Gardens Cooperative 16,350,311 28,500,000 57
19 Holiday 46, LLC Holiday Inn/One RT 46-Summary 15,471,333 23,000,000 67
20 THF Kendig Development, LP Kendig Square Shopping Center 15,238,431 19,000,000 80
21 TMT Associates, LLC 1515 Industrial Way 14,000,000 21,600,000 65
22 CRICKM Maple Heights Trust KMart Store #4991 - Maple Heights, OH 13,756,464 0 0
23 Arapahoe East Venture and Arapahoe Busin Arapahoe East 12,985,696 18,850,000 69
24 CobbOcala Realty, LLC Cobb Theaters - Ocala, FL 11,257,025 0 0
25 Graoch Associates #1 Limited Partnership Court of Flags Apartments 11,091,562 14,300,000 78
26 Malibu Creek Preservation Company, LLC Malibu Creek Plaza 10,581,350 14,600,000 72
27 Bannockburn Executive Plaza LLC Bannockburn Executive Plaza 10,492,393 16,600,000 63
28 Mechanicsburg GF Investors, LP Holiday Inn-Harrisburg West 10,488,447 14,000,000 75
29 Ell-Cap 107-Sherwood Forrest and Frank P Sherwood Forrest 10,380,836 16,000,000 65
30 Graoch Associates #4 Limited Partnership Polo Club Apartments 10,291,853 12,530,000 82
31 Richtree Corporation NorthTech Business Park 10,228,345 13,600,000 75
32 Graoch Associates #55 LP Fox Creek-Summary 9,989,012 13,560,000 74
33 Northmonte Partners LLC Delevan/Westdayl-Summary 9,592,761 13,100,000 73
34 Logan Chatauqua Limited Partnership Logan Industrial Park 9,455,544 12,500,000 76
35 NBL Associates Limited Partnership Waterfront Centre 9,436,244 14,900,000 63
36 Gartex Realty, LP Garden Ridge 9,314,279 0 0
37 Brighton Norse Realty, LLC and Sixth Nors Brighton Beach Shopping Center 9,290,316 12,600,000 73
38 Group Four Properties, L.L.C. Commerce Plaza III 9,093,968 11,450,000 79
39 Timonium Management, Inc. Timonium Holiday Inn Select 8,990,810 15,500,000 58
40 Graoch Associates #53 Limited Partnership Eagles Landing 8,493,590 10,750,000 79
41 Loraine Limited Partnership Lorraine Apartments 8,400,000 11,300,000 74
42 Pacific Tai LLC Best Western Grant Park Hotel 7,589,503 8,950,000 75
43 Evanston Northshore Hotel Partners, LLC The Evanston Holiday Inn & Conference Centre 7,589,503 11,225,000 75
44 Fox Investment Company, LLC Fox Jewelry Plaza and Los Angeles Theatre 7,494,707 10,500,000 71
45 Wellington Centre Company, LLC Wellington Centre 7,390,724 9,750,000 76
46 Boulder Edwards L.P., a Nevada Limited P Boulder Cascade Mobile Home Park 7,200,000 9,675,000 74
47 CRICKM Skillman Trust KMart Store #3718 - Dallas, Tx - Skillman 7,136,812 0 0
48 Wallfarm Associates, LP Residence Inn by Marriott - New Haven, CT 7,078,875 9,500,000 75
49 CRICKM Cypress Point Trust KMart Store #3863 - Houston, Tx - Cypress 6,957,911 0 0
50 CRICKM Willowbrook Trust KMart Store #3809 - Houston, Tx - Willowb 6,699,331 0 0
51 Los Gatos Lodge, LLC Los Gatos Lodge 6,693,508 13,300,000 50
52 Tarzana Medical Office Building Partners Tarzana Medical Office Building 6,595,351 9,850,000 67
53 Realty Management of NJ, LLC and Colorado Lenox Plaza Shopping Center 6,586,437 9,800,000 67
54 Harmar Hotels I, II & III Inc. Kratsa Hotels-Summary 6,538,566 8,360,000 78
55 Windsor Real Estate Limited Partnership The Sedona Apartments 6,500,000 8,200,000 79
56 Wilson Properties I, LLC Kent Park-Executive House-Summary 6,393,623 9,975,000 64
57 Newbrite Associates Limited Partnership Newbrite Shopping Center 6,393,433 8,400,000 76
58 Madison Square Hotel LLC Holiday Inn-Huntsville, AL 6,354,129 9,200,000 69
59 JLJ Management Co. and 2J Management Co, Donnybrook/Orangeburg Summary 6,195,472 8,420,000 74
60 Washington Centre Shops, L.P. Washington Centre 6,195,426 8,000,000 77
61 CMD Columbia Trust and Imperial Associates Dick's Clothing & Sporting Goods Store 6,114,199 8,000,000 76
62 Kensington Hotel Associates LP Hampshire Ambassador Hotel 5,957,845 8,000,000 74
63 Northvale 1997 Associates, L.L.C. Stonehurst/Zenith-Summary 5,949,616 9,000,000 66
64 Furr's 5, LLC Furr's - Mesa (946) 5,855,974 0 0
65 Northridge Partners Brandywine - Towne North Plaza 5,755,860 7,200,000 80
66 3501 E. Chapman LLC Saddleback Plaza 5,638,000 7,200,000 78
67 1800 Sycamore Rd., LLC Union Camp 5,625,643 0 0
68 Realmark-Research, LLC RM-Research Triangle 5,558,723 7,700,000 72
69 Plaza Arcade Realty Co., LLC Plaza Arcade 5,495,943 7,100,000 77
70 Graoch Associates #33 Limited Partnership Autumn Run Apartments 5,495,902 7,800,000 70
71 El Paseo Collection North El Paseo North 5,486,070 7,000,000 78
72 443 Third Avenue, LLC 443 Third Avenue 5,475,550 8,800,000 62
73 Motel Tara Leasing, Inc. Motel 6-Summary 5,421,033 7,930,000 0
74 700 Frenchtown Development Corporation, Amazon.com Building 5,343,901 7,150,000 75
75 Graoch Associates #56 Limited Partnership Southern Slope Apartments 5,196,086 6,400,000 81
76 Select Inn of Janesville, Inc., et al. Select Inn-Summary 5,044,699 6,895,000 73
77 Realmark-Camelot, LLC RM-Camelot East Apartments 4,896,290 6,500,000 75
78 Regel Real Estate Limited Partnership Bradbury Apartments 4,600,000 6,200,000 74
79 1721 Chestnut Realty Associates/1730 Che Victoria's Secret/Limited Express Summary 4,400,254 5,500,000 0
80 Heartland Place LLC Heartland Place 4,395,178 6,500,000 68
81 RI-FISH, L.L.C. Residence Inn by Marriott - Fishers, IN 4,395,096 6,600,000 67
82 Inland Corporation Inland Business Center 4,387,917 8,600,000 51
83 23945 Calabasas Road Associates Parkway Plaza Office Building 4,296,971 5,900,000 73
84 Bond-Bally III Delaware Business Trust BALLY'S-Miami, Florida 4,291,414 0 0
85 Realmark-St. Rita's, L.L.C. RM-St. Rita's Office Building 4,247,241 5,500,000 77
86 Bond-Bally II Delaware Business Trust BALLY'S-Davie, Florida 4,148,553 0 0
87 Taj International, Inc. Howard Johnson Hotel 4,094,449 5,790,000 71
88 Bond-Bally I Delaware Business Trust BALLY'S-Virginia 4,005,484 0 0
89 Freehold Hotel Associates, L.L.C. Freehold Gardens Hotel 3,995,848 6,500,000 61
90 RealMark-Fountains, L.L.C. RM-The Fountains Apartments 3,889,671 5,700,000 68
91 Furr's 2, LLC Furr's - Eubank (875) 3,887,373 0 0
92 Boott Mills I, LLC Boott Mills South and Storage 3,831,542 5,525,000 69
93 Furr's 1, LLC Furr's - Louisiana (876) 3,831,286 0 0
94 Broadway Associates of Warren, LLC Quakerbridge Shoppes Shopping Center 3,828,117 5,650,000 68
95 Graoch Associates #3 Limited Partnership Emerald Pointe Apartments 3,796,394 4,830,000 79
96 Central Speen Limited Partnership CVS - Natick, MA 3,671,358 0 0
97 Missouri Associates Northgate Plaza 3,659,149 4,600,000 80
98 Paramount Hotel Corp. Paramount Best Western 3,596,961 5,200,000 69
99 Los Angeles Fine Arts & Wine Storage Comp Los Angeles Fine Arts & Wine Storage Comp 3,596,291 5,150,000 70
100 Furr's 9, LLC Furr's - Geo. Dieter (938) 3,488,345 0 0
101 8777 Corporation Heritage Paradise 3,487,244 5,225,000 67
102 Furr's 8, LLC Furr's - Viscount (937) 3,484,438 0 0
103 Bryant Real Estate Limited Partnership Citrus Park Apartments 3,450,000 4,100,000 84
104 Realmark-Williamsburg, LLC RM-Williamsburg North 3,448,916 5,000,000 69
105 Pelio Properties, LLC Spartan Business Center 3,392,230 6,000,000 51
106 Furr's 7, LLC Furr's Americas (944) 3,335,814 0 0
107 Williamson County Partners, L.P. Brandywine - Alexander Plaza II 3,297,628 4,150,000 79
108 Gold River Racquet Club Venture Gold River Racquet Club 3,294,684 5,700,000 58
109 1278-1284 First Avenue Realty, LLC 1278-1284 First Avenue 3,291,600 4,450,000 74
110 Carson Bonita Plaza, LLC. Bonita Center 3,197,787 4,400,000 73
111 Interlaken Inn Associates LTD Interlaken Inn 3,196,822 6,800,000 47
112 Le Reve Hotel, LLC Le Reve Hotel 3,087,300 8,200,000 38
113 Realmark-Wayne, L.L.C. RM-Wayne Estates 3,086,520 4,100,000 75
114 East 86th Street Partners, LLC Rite Aid - 86th, New York, NY 3,068,610 4,100,000 75
115 RIC Plano Trust, A Delaware business trust Eckerd's Drug Store - Plano, TX 3,015,326 0 0
116 Windsor Care Center National City, Ltd. Windsor Gardens 2,997,302 4,100,000 73
117 Gautier Associates, a North Carolina Gen Brandywine - Clear Point Plaza 2,947,880 4,200,000 70
118 Havana and Iliff LLC Havana Park Center 2,941,508 4,000,000 74
119 Windward Park Limited Partnership Brandywine - Windward Village 2,897,882 4,460,000 65
120 Reynolds/Dussel Enterprises, LTD. Maumee Marketplace 2,824,901 3,925,000 72
121 TPF Partners, a California general partn Colton-2302 Martin 2,733,899 4,490,000 61
122 Greenville SC Business Trust CVS Pharmacy - Greenville, SC 2,723,636 0 0
123 Realmark-Players, L.L.C. RM-Players Club 2,703,147 4,150,000 65
124 Lafayette Business Park, LLC Lafayette Business Park 2,695,167 6,000,000 51
125 Desai Enterprises, Inc. Comfort Inn - Garland 2,693,936 4,600,000 59
126 Harbor Katella Investment Company LLC 7-Eleven - Anaheim, CA 2,668,289 0 0
127 Hyannis North Limited Partnership CVS Pharmacy - Hyannis, MA 2,659,530 0 0
128 RealMark-Villa, L.L.C. RM-The Villa Apartments 2,642,493 5,100,000 52
129 Realmark-Stonegate L.L.C. RM-Stonegate Townhomes 2,638,649 3,540,000 75
130 Wichita Shopping Center Associates, L.P. Marina Lakes Plaza 2,595,544 4,100,000 63
131 Bow Street Realty, LLC 8 Bow Street 2,471,008 3,450,000 72
132 Univest-Kingston, LLC Rite Aid - Kingston, NY 2,410,663 0 0
133 Wilton Partners Culpepper LLC CVS Pharmacy - Culpepper, Va 2,384,068 0 0
134 TPF Partners, et al. Colton-18952 MacArthur Blvd. 2,310,515 3,700,000 61
135 GB Knoxville Developers, LLC Hook-SupeRx, Inc. - Knoxville Street, Peoria 2,232,301 0 0
136 TPF Partners, a California general partn Colton-18872 MacArthur Blvd. 2,223,256 3,550,000 61
137 Garfield-Midland LLC CVS-Garfield, NJ 2,210,521 0 0
138 Heritage Place Investments #1, A Louisia Arbor Place Apartments 2,205,392 2,800,000 79
139 Realmark-Inducon Columbia, LLC RM-Inducon Columbia 2,195,741 4,100,000 54
140 Westpark, LLC Westpark Shopping Center 2,189,683 3,150,000 70
141 Lilburn GA Business Trust CVS Pharmacy - Lilburn, Ga 2,169,236 0 0
142 GB Prospect Developers, LLC Hook-SupeRx, Inc - Prospect Road, Peoria, 2,167,717 0 0
143 Tustin Plaza Partners, a California gene Tustin Plaza 2,146,355 3,400,000 63
144 Furr's 6, LLC Furr's - Montana (934) 2,120,742 0 0
145 Kernersville NC Business Trust CVS Pharmacy - Kernsville, NC 2,107,872 0 0
146 Poinco Airport, Inc. Comfort Inn Hotel 2,097,918 3,050,000 69
147 Univest-Acworth, L.L.C. Eckerd's Drug Store - Acworth 2,069,291 0 0
148 GB Big Hollow Developers, LLC Hook-SupeRx, Inc - Big Hollow Road, Peori 2,046,885 0 0
149 Elkin NC Business Trust Revco Discount Drug Center - Elkin, NC 2,024,659 0 0
150 Realmark-O'Hara, LLC RM-O'Hara Apartments 2,020,616 2,700,000 75
151 Outer Road LLC Rite Aid - Augusta, ME 2,012,829 0 0
152 Realmark-Jackson, L.L.C. RM-Jackson Park 1,930,085 2,800,000 69
153 Furr's 4, LLC Furr's - Ruidoso (905) 1,923,027 0 0
154 Kendall Professional Building, Inc. Kendall Professional Building 1,898,530 2,460,000 77
155 Centercorp-North Conway LLC CVS Pharmacy - North Conway, NH 1,880,945 0 0
156 Monroe NC Business Trust CVS Pharmacy - Monroe, NC 1,879,337 0 0
157 Mehran Equities, Ltd. Seaman's Furniture 1,873,174 2,500,000 75
158 Tatco Washington, Ltd Revco Discount Drug Center - Washington C 1,840,312 0 0
159 JDI Monona Limited Partnership South Towne Office Park 1,837,909 2,400,000 77
160 Anderson SC Business Trust CVS Pharmacy - Anderson, SC 1,763,832 0 0
161 Cummings Georgia Business Trust CVS Pharmacy - Cummings, Ga 1,763,399 0 0
162 Philadelphia PA Business Trust CVS Pharmacy - Philadelphia, PA 1,761,774 0 0
163 William R. Winner, Jr., L.L.C. Rite Aid - Jonesboro, Battle Creek 1,736,367 0 0
164 Burnsville NC Business Trust CVS Pharmacy - Burnsville, NC 1,728,085 0 0
165 Passaic '85 Associates LP Airport Plaza 1,701,939 2,100,000 81
166 RA Gastonia WJC Business Trust Rite Aid - Gastonia, NC 1,677,618 0 0
167 TPF Partners, a California general partn Colton Plaza 1,627,376 2,720,000 61
168 Athens Square Limited Liability Company CVS Pharmacy - Athens, WV 1,596,647 0 0
169 302 Main Street LLC CVS Pharmacy - Oxford, Ma 1,575,943 0 0
170 Pensacola 1997 Associates, L.L.C. Saufley Square Shopping Center 1,549,406 2,500,000 62
171 Winner Properties, LLC & Winner Investme Rite Aid - Jonesboro, Flint 1,536,837 0 0
172 TPF Partners, a California general partn Colton-2222 Martin Street 1,531,351 2,510,000 61
173 2192 Martin Street Partners 2192 Martin 1,496,100 2,560,000 58
174 A-Secured Self & Vehicle Storage I, L.L. A-Secured Self and Vehicle Storage Facility 1,470,942 2,965,000 50
175 Wentwood Del Lago I, L.P. Casa Del Lago Apartments 1,449,077 1,750,000 83
176 Moores Mill Investors II, LLC Peachtree Apartments 1,394,043 2,050,000 68
177 RealMark-Beaver, L.L.C. RM-Beaver Creek 1,347,430 1,800,000 75
178 PFC Hinesville Associates, LLC Rite Aid - Hinesville 1,340,932 0 0
179 Pasadena Partners Brandywine - Kash N'Karry, Pasadena 1,309,059 2,300,000 57
180 Samuel A. Keesal, Jr. North Ranch Center 1,277,941 2,125,000 60
181 Claxton Associates 1996, LLC Rite Aid - Claxton, GA 1,237,929 0 0
182 Transcript/Caledonian Corporation Caldonian/Transcript-Summary 1,149,236 1,560,000 74
183 5921 University Square, LLC Hollywood Video 1,049,295 1,465,000 72
184 AAA Discount Storage, LLC AAA-Discount Storage 996,899 1,500,000 66
185 TPF Partners, a California general partn Colton-Chanteclair Restaurant 545,003 1,075,000 61
TOTAL 1,465,991,814
</TABLE>
<TABLE>
<CAPTION>
(table continued)
Monthly Interest
First Payment Of
Loan UW P&I (Interest Due Loan Lockbox Subject To Borrower
Nos. DSCR Date Only Loans) Date Type Type Defeasance Encumbered
- ---- -------- ------ ----------- ------- ------ ---------- ---------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1 1.89 12/11/97 .00 11 ARD Hard Yes Fee
2 1.30 10/11/99 541,250.00 11 ARD Hard No Leasehold
3 1.42 11/11/97 .00 11 ARD Hard No Fee
4 1.23 10/11/99 426,300.00 11 ARD Hard Yes Fee
5 1.38 12/11/97 .00 11 ARD Modified Yes Fee
6 1.42 01/11/98 .00 11 ARD Springing Yes Fee
7 1.57 12/11/97 .00 11 ARD Springing Yes Both Fee/Lease
8 1.37 08/11/97 .00 11 ARD Hard Yes Fee
9 1.06 12/11/97 .00 11 ARD Hard Yes Fee
10 1.34 01/11/98 .00 11 ARD Springing Yes Fee
11 1.21 12/11/97 .00 11 ARD Modified Yes Fee
12 1.24 09/11/97 .00 11 ARD Hard Yes Fee
13 .00 12/01/97 .00 01 Fully Am Hard Yes Fee
14 1.39 10/01/97 .00 01 ARD Hard No Fee
15 1.43 12/11/97 .00 11 ARD Modified Yes Fee
16 .00 12/01/97 .00 01 Fully Am Hard Yes Fee
17 1.26 05/01/97 .00 01 ARD Hard No Fee
18 1.54 12/01/97 .00 01 Balloon No Lockbox No Fee
19 1.51 11/11/97 .00 11 ARD Modified Yes Fee
20 1.19 12/11/97 .00 11 ARD Modified Yes Leasehold
21 1.48 01/11/98 .00 11 ARD Springing Yes Fee
22 .00 12/01/97 .00 01 Fully Am Hard Yes Fee
23 1.32 12/11/97 .00 11 ARD Modified Yes Fee
24 .00 12/11/97 .00 11 Fully Am Hard Yes Fee
25 1.27 12/11/97 .00 11 ARD Modified Yes Fee
26 1.42 10/11/97 .00 11 ARD Springing Yes Fee
27 1.35 12/11/97 .00 11 ARD Springing Yes Fee
28 1.66 12/11/97 .00 11 ARD Modified Yes Fee
29 1.33 10/01/97 .00 01 ARD Hard No Fee
30 1.29 12/11/97 .00 11 ARD Hard Yes Fee
31 1.45 09/11/97 .00 11 ARD Hard Yes Fee
32 1.10 11/11/97 .00 11 ARD Springing Yes Fee
33 1.58 12/11/97 .00 11 ARD Springing Yes Fee
34 1.43 07/11/97 .00 11 ARD Hard Yes Fee
35 1.62 09/11/97 .00 11 ARD Hard Yes Fee
36 .00 12/11/97 .00 11 Fully Am Hard Yes Fee
37 1.27 12/11/97 .00 11 ARD Modified Yes Fee
38 1.23 12/11/97 .00 11 ARD Modified Yes Fee
39 1.51 12/11/97 .00 11 ARD Springing Yes Leasehold
40 1.27 12/11/97 .00 11 ARD Modified Yes Fee
41 1.25 09/11/99 54,390.00 11 ARD Springing Yes Fee
42 1.32 11/11/97 .00 11 ARD Hard Yes Fee
43 1.32 11/11/97 .00 11 ARD Hard Yes Fee
44 1.54 12/11/97 .00 11 ARD Springing Yes Fee
45 1.38 11/11/97 .00 11 ARD Springing Yes Fee
46 1.30 02/01/98 52,230.00 01 ARD Hard No Fee
47 .00 12/01/97 .00 01 Fully Am Hard Yes Fee
48 1.34 12/11/97 .00 11 ARD Hard Yes Both Fee/Lease
49 .00 12/01/97 .00 01 Fully Am Hard Yes Fee
50 .00 12/01/97 .00 01 Fully Am Hard Yes Fee
51 1.32 12/11/97 .00 11 ARD Modified Yes Fee
52 1.49 12/11/97 .00 11 ARD Modified Yes Leasehold
53 1.48 09/11/97 .00 11 ARD Springing Yes Fee
54 1.35 11/11/97 .00 11 ARD Modified Yes Both Fee/Lease
55 1.27 11/11/99 40,625.00 11 ARD Modified Yes Fee
56 1.30 12/11/97 .00 11 ARD Modified Yes Fee
57 1.31 12/11/97 .00 11 ARD Springing Yes Fee
58 1.11 09/11/97 .00 11 ARD Springing Yes Fee
59 1.40 12/11/97 .00 11 ARD Springing Yes Fee
60 1.45 12/11/97 .00 11 ARD Modified Yes Fee
61 1.23 11/11/97 .00 11 ARD Modified Yes Fee
62 1.78 07/11/97 .00 11 ARD Hard Yes Leasehold
63 1.23 11/11/97 .00 11 ARD Hard Yes Fee
64 .00 01/11/98 .00 11 ARD Hard Yes Fee
65 1.20 12/11/97 .00 11 ARD Modified Yes Fee
66 1.21 01/01/98 .00 01 Balloon Modified Yes Fee
67 .00 07/01/97 .00 01 Fully Am Hard Yes Fee
68 1.44 10/11/97 .00 11 ARD Springing Yes Fee
69 1.39 12/11/97 .00 11 ARD Modified Yes Fee
70 1.37 12/11/97 .00 11 ARD Modified Yes Fee
71 1.48 09/11/97 .00 11 ARD Springing Yes Fee
72 1.53 08/11/97 .00 11 ARD Modified Yes Leasehold
73 .00 01/11/98 .00 11 Fully Am Hard Yes Both Fee/Lease
74 1.21 12/11/97 .00 11 ARD Modified Yes Leasehold
75 1.33 12/11/97 .00 11 ARD Modified Yes Fee
76 1.79 12/11/97 .00 11 ARD Modified Yes Fee
77 1.44 12/11/97 .00 11 ARD Springing Yes Fee
78 1.20 09/11/99 29,785.00 11 ARD Springing Yes Fee
79 .00 07/11/97 .00 11 Fully Am Hard No Fee
80 1.63 11/11/97 .00 11 ARD Modified Yes Leasehold
81 1.44 12/11/97 .00 11 ARD Springing Yes Fee
82 1.47 10/11/97 .00 11 ARD Springing Yes Fee
83 1.47 12/11/97 .00 11 ARD Modified Yes Fee
84 .00 08/11/97 .00 11 Fully Am Hard Yes Fee
85 1.18 12/11/97 .00 11 ARD Modified Yes Fee
86 .00 08/11/97 .00 11 Fully Am Hard Yes Fee
87 1.75 11/11/97 .00 11 ARD Springing Yes Fee
88 .00 08/11/97 .00 11 Fully Am Hard Yes Fee
89 1.44 12/11/97 .00 11 ARD Modified Yes Fee
90 1.31 07/07/97 .00 07 ARD Springing Yes Fee
91 .00 01/11/98 .00 11 ARD Hard Yes Fee
92 1.21 09/11/97 .00 11 ARD Hard Yes Fee
93 .00 01/11/98 .00 11 ARD Hard Yes Leasehold
94 1.34 12/11/97 .00 11 ARD Modified Yes Fee
95 1.33 12/11/97 .00 11 ARD Modified Yes Fee
96 .00 11/11/97 .00 11 Fully Am Hard Yes Fee
97 1.13 10/11/97 .00 11 ARD Hard Yes Fee
98 1.50 12/11/97 .00 11 ARD Hard Yes Fee
99 1.51 12/11/97 .00 11 ARD Modified Yes Fee
100 .00 01/11/98 .00 11 ARD Hard Yes Fee
101 1.88 09/11/97 .00 11 ARD Springing Yes Fee
102 .00 01/11/98 .00 11 ARD Hard Yes Fee
103 1.26 11/11/99 21,562.50 11 ARD Modified Yes Fee
104 1.33 09/11/97 .00 11 ARD Springing Yes Fee
105 1.70 09/11/97 .00 11 ARD Springing Yes Fee
106 .00 01/11/98 .00 11 ARD Hard Yes Fee
107 1.20 12/11/97 .00 11 ARD Modified Yes Fee
108 1.56 12/11/97 .00 11 ARD Springing Yes Fee
109 1.42 10/11/97 .00 11 ARD Springing Yes Fee
110 1.54 12/11/97 .00 11 ARD Modified Yes Fee
111 1.82 12/11/97 .00 11 ARD Modified Yes Fee
112 1.51 10/11/97 .00 11 ARD Springing Yes Fee
113 1.45 07/07/97 .00 07 ARD Springing Yes Fee
114 1.29 09/11/97 .00 11 ARD Hard Yes Fee
115 .00 07/11/97 .00 11 Fully Am Hard Yes Fee
116 1.29 12/11/97 .00 11 ARD Modified Yes Fee
117 1.42 12/11/97 .00 11 ARD Modified Yes Fee
118 1.44 12/11/97 .00 11 ARD Hard Yes Fee
119 1.16 12/11/97 .00 11 ARD Modified Yes Fee
120 1.41 08/11/97 .00 11 ARD Hard Yes Fee
121 1.60 08/11/97 .00 11 ARD Springing Yes Fee
122 .00 12/06/97 .00 06 Fully Am Modified Yes Fee
123 1.26 07/11/97 .00 11 ARD Springing Yes Fee
124 1.70 10/11/97 .00 11 ARD Springing Yes Fee
125 1.78 10/11/97 .00 11 ARD Springing Yes Fee
126 .00 10/11/97 .00 11 Fully Am Hard Yes Fee
127 .00 01/06/98 .00 06 Fully Am Modified Yes Fee
128 1.25 07/07/97 .00 07 ARD Springing Yes Fee
129 1.39 08/11/97 .00 11 ARD Springing Yes Fee
130 1.16 11/11/97 .00 11 ARD Hard Yes Both Fee/Lease
131 1.42 12/11/97 .00 11 ARD Springing Yes Fee
132 .00 11/11/97 .00 11 Fully Am Hard Yes Fee
133 .00 12/06/97 .00 06 Fully Am Modified Yes Fee
134 1.60 08/11/97 .00 11 ARD Springing Yes Fee
135 .00 01/06/98 .00 06 Fully Am Modified Yes Fee
136 1.60 08/11/97 .00 11 ARD Springing Yes Fee
137 .00 01/11/98 .00 11 Fully Am Hard Yes Fee
138 1.37 11/11/97 .00 11 ARD Modified Yes Fee
139 1.26 11/11/97 .00 11 ARD Springing Yes Leasehold
140 1.48 07/11/97 .00 11 ARD Modified Yes Fee
141 .00 12/06/97 .00 06 Fully Am Modified Yes Fee
142 .00 01/06/98 .00 06 Fully Am Modified Yes Fee
143 1.25 10/11/97 .00 11 ARD Modified Yes Fee
144 .00 01/11/98 .00 11 ARD Hard Yes Fee
145 .00 01/06/98 .00 06 Fully Am Modified Yes Fee
146 1.87 12/11/97 .00 11 ARD Springing Yes Fee
147 .00 11/11/97 .00 11 Fully Am Hard Yes Fee
148 .00 01/06/98 .00 06 Fully Am Modified Yes Fee
149 .00 01/06/98 .00 06 Fully Am Modified Yes Fee
150 1.34 07/07/97 .00 07 ARD Springing Yes Fee
151 .00 12/11/97 .00 11 Fully Am Hard Yes Fee
152 1.34 07/11/97 .00 11 ARD Springing Yes Fee
153 .00 12/11/97 .00 11 ARD Hard Yes Fee
154 1.17 12/11/97 .00 11 ARD Modified Yes Fee
155 .00 10/06/97 .00 06 Fully Am Modified Yes Fee
156 .00 12/06/97 .00 06 Fully Am Modified Yes Fee
157 1.27 12/11/97 .00 11 ARD Modified Yes Fee
158 .00 12/06/97 .00 06 Fully Am Modified Yes Fee
159 1.43 12/11/97 .00 11 ARD Springing Yes Fee
160 .00 10/06/97 .00 06 Fully Am Modified Yes Fee
161 .00 09/06/97 .00 06 Fully Am Modified Yes Fee
162 .00 09/06/97 .00 06 Fully Am Modified Yes Fee
163 .00 11/11/97 .00 11 Fully Am Hard Yes Fee
164 .00 12/06/97 .00 06 Fully Am Modified Yes Fee
165 1.23 11/11/97 .00 11 ARD Hard Yes Fee
166 .00 10/11/97 .00 11 Fully Am Hard Yes Fee
167 1.60 08/11/97 .00 11 ARD Springing Yes Fee
168 .00 01/06/98 .00 06 Fully Am Modified Yes Fee
169 .00 10/06/97 .00 06 Fully Am Modified Yes Fee
170 1.33 10/11/97 .00 11 ARD Hard Yes Fee
171 .00 12/11/97 .00 11 Fully Am Hard Yes Fee
172 1.60 08/11/97 .00 11 ARD Springing Yes Fee
173 1.79 08/11/97 .00 11 ARD Springing Yes Fee
174 1.32 10/11/97 .00 11 ARD Springing Yes Fee
175 1.24 12/11/97 .00 11 ARD Modified Yes Fee
176 1.48 08/11/97 .00 11 ARD Springing Yes Fee
177 1.36 08/11/97 .00 11 ARD Springing Yes Fee
178 .00 09/11/97 .00 11 Fully Am Hard Yes Fee
179 1.08 12/11/97 .00 11 ARD Springing Yes Fee
180 1.40 10/11/97 .00 11 ARD Springing Yes Fee
181 .00 07/11/97 .00 11 Fully Am Hard Yes Fee
182 1.45 12/11/97 .00 11 ARD Modified Yes Fee
183 1.27 12/11/97 .00 11 ARD Springing Yes Fee
184 1.46 09/11/97 .00 11 ARD Hard Yes Fee
185 1.60 08/11/97 .00 11 ARD Springing Yes Fee
</TABLE>
EXHIBIT C
FORM OF INVESTMENT REPRESENTATION LETTER
Norwest Bank Minnesota, National Association,
as Trustee
Sixth and Marquette
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
Credit Suisse First Boston Mortgage
Securities Corp.
Eleven Madison Avenue
New York, New York 10010
Attention: Principal Transactions Group
Re: Transfer of Credit Suisse First Boston Mortgage Securities Corp
Commercial Mortgage Pass-Through Certificates, Series 1997-C2
-----------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of December 11, 1997 (the "Pooling and Servicing
Agreement"), by and among Credit Suisse First Boston Mortgage Securities
Corp., as Depositor, First Union National Bank, as Servicer, Lennar Partners,
Inc., as Special Servicer, and Norwest Bank Minnesota, National Association,
as Trustee on behalf of the holders of Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
1997-C2 (the "Certificates") in connection with the transfer by
_________________ (the "Seller") to the undersigned (the "Purchaser") of
$_______________ aggregate Certificate Balance of Class ___ Certificates (the
"Certificate"). Capitalized terms used and not otherwise defined herein
shall have the respective meanings ascribed to such terms in the Pooling and
Servicing Agreement.
In connection with such transfer, the Purchaser hereby represents
and warrants to you and the addressees hereof as follows:
1. The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the Securities Act of
1933, as amended (the "1933 Act"). The Purchaser is aware that the transfer
is being made in reliance on Rule 144A, and the Purchaser has had the
opportunity to obtain the information required to be provided pursuant to
paragraph (d)(4)(i) of Rule 144A.
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale to qualified
institutional buyers' in transactions under Rule 144A, and not in any event
with the view to, or for resale in connection with, any distribution thereof.
The Purchaser understands that the Certificate (and any subsequent
Certificate) has not been registered under the 1933 Act, by reason of a
specified exemption from the registration provisions of the 1933 Act which
depends upon, among other things, the bona fide nature of the Purchaser's
investment intent (or intent to resell to only certain investors in certain
exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the
opportunity to ask questions and receive answers concerning the terms and
conditions of the transactions contemplated by the Private Placement
Memorandum.
4. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered
or qualified under the 1933 Act or the securities laws of any State or any
other jurisdiction, and that the Certificate cannot be resold unless it is
registered or qualified thereunder or unless an exemption from such
registration or qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner
of a Certificate or Certificates, as the case may be (each, a
"Certificateholder"), in all respects as if it were a signatory thereto.
This undertaking is made for the benefit of the Trust, the Certificate
Registrar and all Certificateholders present and future.
6. The Purchaser will not sell or otherwise transfer any portion of
the Certificate or Certificates, except in compliance with Section 5.02 of
the Pooling and Servicing Agreement.
7. Check one of the following:[FN]
/ / The Purchaser is a U.S. Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or
successor form).
/ / The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be
withheld by the Trustee (or its agent) or the Paying Agent with
respect to distributions to be made on the Certificate. The
Purchaser has attached hereto either (i) a duly executed IRS
Form W-8 (or successor form), which identifies such Purchaser as
the beneficial owner of the Certificate and states that such
Purchaser is not a U.S. Person or (ii) two duly executed copies
of IRS Form 4224 (or successor form), which identify such
Purchaser as the beneficial owner of the Certificate and state
that interest and original issue discount on the Certificate and
Permitted Investments is, or is expected to be, effectively
connected with a U.S. trade or business. The Purchaser agrees
to provide to the Certificate Registrar updated IRS Forms W-8 or
IRS Forms 4224, as the case may be, any applicable successor IRS
forms, or such other certifications as the Certificate Registrar
may reasonably request, on or before the date that any such IRS
form or certification expires or becomes obsolete, or promptly
after the occurrence of any event requiring a change in the most
recent IRS form of certification furnished by it to the
Certificate Registrar.
<F1>
_______________
1 Each Purchaser must include one of the two alternative certifications.
</F1>
For this purpose, "U.S. Person" means a citizen or resident of the United
States for U.S. federal income tax purposes, a corporation or a partnership
(including an entity treated as a corporation or a partnership for U.S.
federal income tax purposes) created or organized in or under the laws of the
United States, any State thereof or the District of Columbia (unless, in the
case of a partnership, Treasury regulations are adopted that provide
otherwise), or an estate the income of which is subject to U.S. federal
income taxation regardless of its source or a trust if (A) for taxable years
beginning after December 31, 1996 (or for taxable years ending after August
20, 1996, if the trustee has made an application election), a court within
the United States is able to exercise primary supervision over the
administration of such trust, and one or more United States persons have the
authority to control all substantial decisions of such trust, or (B) for all
other taxable years, such trust is subject to United States federal income
tax regardless of the source of its income.
8. The Purchaser of the Certificate is not (a)(i) an employee
benefit plan subject to the fiduciary responsibility provisions of ERISA or
Section 4975 of the Code or (ii) a governmental plan, as defined in Section
3(32) of ERISA, subject to any federal, state or local law ("Similar Law")
which is, to a material extent, similar to the foregoing provisions of ERISA
or the Code (each a "Plan") or (b) a person acting on behalf of or using the
assets of any such Plan (including an entity whose underlying assets include
Plan assets by reason of investment in the entity by such Plan and the
application of Department of Labor Regulation Section 2510.3-101), other than
an insurance company using the assets of its general account under
circumstances whereby the purchase and holding of such Certificates by such
insurance company would be exempt from the prohibited transaction provisions
of ERISA and the Code under Prohibited Transaction Class Exemption 95-60.
9. If the Purchaser of the Certificate is a Person referred to in
8(a) or (b) above, the Purchaser has delivered to the Certificate Registrar
an Opinion of Counsel in form and substance satisfactory to the Trustee, the
Certificate Registrar and the Depositor to the effect that the acquisition
and holding of such Certificate by such purchaser or transferee will not
result in the assets of the Trust Fund being deemed to be "plan assets" and
subject to the fiduciary responsibility provisions of ERISA, the prohibited
transaction provisions of the Code or the provisions of any Similar Law
(without regard to the identity or nature of the Holders of Certificates of
any Class), will not constitute or result in a "prohibited transaction"
within the meaning of ERISA, Section 4975 of the Code or any Similar Law, and
will not subject the Trustee, the Certificate Registrar, the Servicer, the
Special Servicer, the Underwriter, the Initial Purchaser or the Depositor to
any obligation or liability (including obligations or liabilities under
ERISA, Section 4975 of the Code or any such Similar Law) in addition to those
set forth in the Pooling and Servicing Agreement, which Opinion of Counsel
shall not be at the expense of the Depositor, the Servicer, the Special
Servicer, the Trustee or the Trust Fund.
Very truly yours,
_________________________________________
(The Purchaser)
By: ____________________________________
Name:
Title:
Dated:
EXHIBIT D-1
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT
TO SECTION 860E(E)(4)
OF THE INTERNAL
REVENUE CODE OF
1986, AS AMENDED
STATE OF )
) SS:
COUNTY OF )
(NAME OF OFFICER), being first duly sworn, deposes and says:
1. That (he) (she) is (Title of Officer) of (Name of Transferee)
(the "Transferee"), a (description of type of entity) duly organized and
existing under the laws of the (State of __________) (United States), on
behalf of which he makes this affidavit.
2. That the Transferee's Taxpayer Identification Number is ( ).
3. That the Transferee of a Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificate, Series
1997-C2, Class (R) (LR) Certificate (the "Class (R) (LR) Certificate") is not
a Disqualified Organization (as defined below) or an agent thereof (including
nominee, middleman or other similar person) (an "Agent"), an ERISA Prohibited
Holder or a Non-U.S. Person (as defined below). For these purposes, a
"Disqualified Organization" means any of (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject
to tax and, majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (iii)
any organization (other than certain farmers' cooperatives described in
Section 521 of the Code) which is exempt from the tax imposed by Chapter 1 of
the Code (including the tax imposed by Section 511 of the Code on unrelated
business taxable income), (iv) rural electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the Code and (v) any other Person so
designated by the Servicer based upon an Opinion of Counsel that the holding
of an Ownership Interest in a Residual Certificate by such Person may cause
either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a
REMIC or any Person having an Ownership Interest in any Class of Certificates
(other than such Person) to incur a liability for any federal tax imposed
under the Code that would not otherwise be imposed but for the Transfer of an
Ownership Interest in a Residual Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions. For
these purposes, "ERISA Prohibited Holder" means an employee benefit plan
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") or section 4975 of the Code or any governmental plan (as
defined in Section 3(32) of ERISA) subject to any federal, state or local law
which is, to a material extent, similar to the foregoing provisions of ERISA
or the Code (each, a "Plan") or a person acting on behalf of or investing the
assets of such a Plan. For these purposes, "Non-U.S. Person" means any
person other than a U.S. Person, unless, with respect to the Transfer of a
Residual Certificate, (i) such person holds such Residual Certificate in
connection with the conduct of a trade or business within the United States
and furnishes the Transferor and the Certificate Registrar with an effective
Internal Revenue Service Form 4224 or (ii) the Transferee delivers to both
the Transferor and the Certificate Registrar an opinion of a nationally
recognized tax counsel to the effect that such Transfer is in accordance with
the requirements of the Code and the regulations promulgated thereunder and
that such Transfer of the Residual Certificate will not be disregarded for
federal income tax purposes.
4. That the Transferee historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future and the
Transferee intends to pay taxes associated with holding the Class (R) (LR)
Certificate as they become due.
5. That the Transferee understands that it may incur tax
liabilities with respect to the Class (R) (LR) Certificate in excess of any
cash flow generated by the Class (R) (LR) Certificate.
6. That the Transferee agrees not to transfer the Class (R) (LR)
Certificate to any Person or entity unless (a) the Transferee has received
from such Person or entity an affidavit substantially in the form of this
Transfer Affidavit and (b) the Transferee provides to the Certificate
Registrar a letter substantially in the form of Exhibit D-2 to the Pooling
and Servicing Agreement certifying that it has no actual knowledge that such
Person or entity is a Disqualified Organization or an Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person and that it has no reason to know that
such Person or entity does not satisfy the requirements set forth in
paragraph 4 hereof.
7. That the Transferee agrees to such amendments of the Pooling and
Servicing Agreement dated as of December 11, 1997 among Credit Suisse First
Boston Mortgage Securities Corp., as Depositor, First Union National Bank, as
Servicer, Lennar Partners, Inc., as Special Servicer, and Norwest Bank
Minnesota, National Association, as Trustee, (the "Pooling and Servicing
Agreement"), as may be required to further effectuate the restrictions on
transfer of the Class (R) (LR) Certificate to such a Disqualified
Organization or an Agent thereof, an ERISA Prohibited Holder or a Non-U.S.
Person. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing
Agreement.
8. That, if a "tax matters person" is required to be designated
with respect to the (Upper-Tier REMIC) (Lower-Tier REMIC), the Transferee
agrees to act as "tax matters person" and to perform the functions of "tax
matters person" of the (Upper-Tier REMIC) (Lower-Tier REMIC) pursuant to
Section 10.01(c) of the Pooling and Servicing Agreement, and agrees to the
irrevocable designation of the Servicer as the Transferee's agent in
performing the function of "tax matters person."
9. The Transferee has reviewed, and agrees to be bound by and to
abide by, the provisions of Section 5.02(d) of the Pooling and Servicing
Agreement concerning registration of the transfer and exchange of Class (R)
(LR) Certificates.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, by its (Title of Officer) this _____ day of
__________, 19__.
(NAME OF TRANSFEREE)
By: _________________________________
(Name of Officer)
(Title of Officer)
Personally appeared before me the above-named (Name of Officer),
known or proved to me to be the same person who executed the foregoing
instrument and to be the (Title of Officer) of the Transferee, and
acknowledged to me that (he) (she) executed the same as (his) (her) free act
and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ___ day of __________, 19__.
___________________________________
NOTARY PUBLIC
COUNTY OF _________________
STATE OF __________________
My commission expires the ___ day of __________, 19__.
EXHIBIT D-2
FORM OF TRANSFEROR LETTER
(Date)
Norwest Bank Minnesota, National Association,
as Trustee
Sixth and Marquette
Minneapolis, MN 55479-0113
Attention: Corporate Trust Services (CMBS)
Re: Credit Suisse First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates, Series 1997-C2
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Ladies and Gentlemen:
(Transferor) has reviewed the attached affidavit of (Transferee),
and has no actual knowledge that such affidavit is not true and has no reason
to know that the requirements set forth in paragraphs 3 and 4 thereof are not
satisfied or that the information contained in paragraphs 3 and 4 thereof is
not true.
Very truly yours,
(Transferor)
__________________________
EXHIBIT E
(RESERVED)
EXHIBIT F
FORM OF REQUEST FOR RELEASE
(Date)
Norwest Bank Minnesota, National Association, as Trustee
3 New York Plaza, 15th Floor
New York, New York 10004
Attention: Corporate Trust Services (CMBS)
Re: Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1997-C2,
REQUEST FOR RELEASE
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Dear _______________________,
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under a certain Pooling and Servicing
Agreement dated as of December 11, 1997 (the "Pooling and Servicing
Agreement"), by and among Credit Suisse First Boston Mortgage Securities
Corp., as depositor, the undersigned, as servicer (the "Servicer"), Lennar
Partners, Inc., as special servicer, First Union National Bank, as servicer,
the undersigned, as special servicer (the "Special Servicer"), and you, as
trustee, the undersigned hereby requests a release of the Mortgage File (or
the portion thereof specified below) held by or on behalf of you as Trustee
with respect to the following described Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please
specify which:
Reason for requesting file (or portion thereof):
______1. Loan paid in full. The (Servicer) (Special
Servicer) hereby certifies that all amounts received
in connection with the Loan have been or will be
credited to the Certificate Account pursuant to the
Pooling and Service Agreement.
______2. The Loan is being foreclosed.
______3. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Loan has been paid in full, in which case the Mortgage File (or such portion
thereof) will be retained by us permanently, or unless the Loan is being
foreclosed, in which case the Mortgage File (or such portion thereof) will be
returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
(SERVICER) (SPECIAL SERVICER)
By: ____________________________
Name: ___________________
Title: __________________
EXHIBIT G
(RESERVED)
EXHIBIT H
(RESERVED)
EXHIBIT I-1
FORM OF COMPARATIVE FINANCIAL STATUS REPORTS
Credit Suisse First Boston Mortgage Securities Corp., Series 1997-C2
COMPARATIVE FINANCIAL STATUS REPORT
as of ______________________
<TABLE>
<CAPTION>
ORIGINAL UNDERWRITING INFORMATION
---------------------------------
BASIS YEAR
-------------------
LAST
CURRENT PAID ANNUAL PROPERTY FINANCIAL
LOAN SCHED THRU DEBT IMPACT INFO AS OF % TOTAL $ (1)
NUMBER CITY STATE BALANCE DATE SERVICE DATE DATE OCC REVENUE NOI DSC
- ------ ---- ----- ------- ---- ------- -------- ---------- --- ------- --- ---
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
List all loans currently in deal with or with out information largest to smallest loan
Total: $ $ WA $ $ WA
- --------------------------------------------------------------------------------------------------
RECEIVED
FINANCIAL INFORMATION: LOANS BALANCE
# % $ %
CURRENT FULL YEAR:
CURRENT FULL YR. RECEIVED WITH DSC LESS THAN 1:
PRIOR FULL YEAR:
PRIOR FULL YR. RECEIVED WITH DSC LESS THAN 1:
QUARTERLY FINANCIALS:
- -----------------------------------------------------------------------------------------------------
<CAPTION>
PRIOR FULL YEAR OPERATING INFORMATION CURRENT ANNUAL OPERATING INFORMATION
----------------------------------------- -------------------------------------
AS OF____________ NORMALIZED AS OF ____________ NORMALIZED
-------------- -------------
LAST LAST
PROPERTY FINANCIAL (1) PROPERTY FINANCIAL
IMPACT INFO AS OF % TOTAL $ DSC IMPACT INFO AS OF % TOTAL $ (1)
DATE DATE OCC REVENUE NOI X DATE DATE OCC REVENUE NOI DSC
- --------- ---------- ---- ------- --- --- -------- ---------- --- -------- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
WA $ $ WA WA $ $ WA
- --------------------------------------------------------------------------------------------------------------------
REQUIRED
LOANS BALANCE
# % $ %
- ---------------------------------------------------------------
<PAGE>
<CAPTION>
"ACTUAL" (2)
YTD FINANCIAL INFORMATION NET CHANGE
- -------------------------------- --------------
MONTH REQUIRED CURRENT & BASIS
-------------- ----------------
FINANCIAL %
INFO AS OF % TOTAL $ % $ TOTAL (1)
DATE OCC REVENUE NOI DSC OCC REV DSC
- ------------ ---- ------- --- --- --- ----- ---
<S> <C> <C> <C> <C> <C> <C> <C>
WA $ $ WA WA $ WA
- --------------------------------------------------------------------------------------
</TABLE>
(1) DSC calculated using NOI / Debt Service
(2) Net change should compare the latest year to the underwriting year
EXHIBIT I-2
FORM OF DELINQUENT LOAN STATUS REPORT
Credit Suisse First Boston Mortgage Securities Corp., Series 1997-C2
DELINQUENT LOAN STATUS REPORT
as of ______________________
<TABLE>
<CAPTION>
(A) (B) (C) (D)
SQ FT OR TOTAL TOTAL OTHER (E)=A+B+C+D
PROP- UNITS/ PAID OUTSTANDING P&I OUTSTANDING ADVANCES TOTAL CURRENT
LOAN # ERTY OCC %/ T0 SCHEDULED LOAN ADVANCES TO EXPENSES TO (TAXES & MONTHLY MONTHLY
CITY & STATE TYPE DATE DATE BALANCE DATE DATE ESCROW) EXPOSURE P&I
- ------------- ---- ------- ------ -------------- --------------- ------------ -------- --------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
DATE
NOI
MOST APPRAISAL TRANSFER (G)=(.92*F)-E FILED/
CURRENT LTM LTM ACCURATE BPO OR DATE/ LOSS USING FCL
INTEREST MATURITY NOI NOI/ VALUATION PROPERTY INTERNAL CLOSING 92% APPR. SALE
RATE DATE DATE DSCR DATE VALUE VALUE** DATE OR BPO (F) DATE STATUS* COMMENTS
- ------- -------- ------ --------- --------- --------- ----------- ------ ------------- ------- -------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
90 + DAYS DELINQUENT
60 DAYS DELINQUENT
30 DAYS DELINQUENT
CURRENT & AT SPECIAL SERVICER
</TABLE>
FCL - Foreclosure
LTM - Latest 12 Months
* Status should contain a code indicating the current direction of each loan
such as (FCL - In Foreclosure, MOD - Modification, DPO - Discount Payoff, NS
- Note Sale, BK - Bankruptcy, PP - Payment Plan, Curr - Current, TBD - To Be
Determined etc...) It is possible to combine the status codes if the loan is
going in more than one direction (i.e., FCL/Mod, BK/Mod, BK/FCL/DPO)
EXHIBIT I-3
FORM OF HISTORICAL LOAN MODIFICATION REPORT
Credit Suisse First Boston Mortgage Securities Corp., Series 1997-C2
HISTORICAL LOAN MODIFICATION REPORT
as of _____________________
<TABLE>
<CAPTION>
BALANCE
WHEN SENT BALANCE AT THE
MOD / EFFECT TO SPECIAL EFFECTIVE DATE OF # MTHS /
LOAN ID CITY/STATE EXTENTION DATE SERVICER REHABILITATION OLD RATE NEW RATE
- ------- ----------- --------- -------- ------------ ----------------- -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
- ---------------------------------------------------------------------------------------------------------------------------------
TOTAL FOR ALL LOANS:
TOTAL FOR LOANS IN CURRENT MONTH:
# OF LOANS $ BALANCE
MODIFICATIONS:
MATURITY DATE EXTENSIONS:
TOTAL:
<CAPTION>
(2) EST.
FUTURE
TOTAL # INTEREST LOSS
MTHS FOR (1) REALIZED TO TRUST $
OLD NEW CHANGE OF LOSS TO (RATE
OLD P&I NEW P&I MATURITY MATURITY MOD TRUST $ REDUCTION) COMMENT
- ------- ------- -------- -------- --------- ------------ ------------- -----------------
<S> <C> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Actual principal loss taken by bonds
(2) Expected future loss due to a rate reduction. This is just an estimate
calculated at the time of the modification.
EXHIBIT I-4
FORM OF HISTORICAL LOSS ESTIMATE REPORT
Credit Suisse First Boston Mortgage Securities Corp., Series 1997-C2
HISTORICAL LOSS ESTIMATE REPORT (REO-SOLD OR DISCOUNTED PAYOFF)
as of _________________________
<TABLE>
<CAPTION>
(c)=b/a (a) (b) (d) (c) (f)
LATEST
APPRAISAL OR NET AMT
SERVICER % RECEIVED BROKERS EFFECT DATE RECEIVED FROM SCHEDULED TOTAL P&I
LOAN ID PROPERTY NAME CITY/STATE FROM SALE OPINION OF SALE SALES PRICE SALE BALANCE ADVANCED
- --------- ------------- ----------- ---------- ------------ ------------ ----------- ------------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL ALL LOANS:
CURRENT MONTH ONLY:
<CAPTION>
(g) (h) (i)=d-(f+g+h) (k)=i-e (m) (n)=k+m (o)=n/e
MINOR
DATE LOSS ADJ LOSS % OF
TOTAL ACTUAL LOSSES PASSED MINOR ADJ TO PASSED TOTAL LOSS WITH SCHEDULED
EXPENSES SERVICING FEES NET PROCEEDS PASSED THRU THRU TRUST THRU ADJUSTMENT BALANCE
- -------- -------------- --------------- -------------- ------------ ------------- ------- ---------------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
THIS REPORT IS HISTORICAL
- -----------------------------------------------------------------------------------------------------------------------------------
TOTAL ALL LOANS:
CURRENT MONTH ONLY:
</TABLE>
EXHIBIT I-5
FORM OF REO STATUS REPORT
Credit Suisse First Boston Mortgage Securities Corp., Series 1997-C2
REO STATUS REPORT
as of ________________
<TABLE>
<CAPTION>
(C)
(A) (B) OTHER (D)
PROP- SQ FT OR SCHEDULED TOTAL P&I ADVANCES TOTAL (E)=A+B+C+D CURRENT
LOAN NUM ERTY UNITS/ PAID TO LOAN ADVANCES (TAXES & EXPENSES TOTAL MONTHLY
/CITY & STATE TYPE OCC % DATE BALANCE TO DATE ESCROW) TO DATE EXPOSURE P&I
- ------------- ------ ------- -------- ---------- ---------- -------- -------- ---------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
(1) Use the following codes; App. - Appraisal, BPO - Brokers Opinion, Int - Internal Value
<CAPTION>
(YTD) (F) (1) (G)=(92*F)-E
MOST MOST APPRAISAL TRANSFER LOSS USING
CURRENT RECENT ACCURATE BPO DATE/ 92% REO
INTEREST MATURITY NOI AS NOI/ APPRAISAL PROPERTY INTERNAL CLOSING APPRAISAL ACQUISITION PENDING
RATE DATE OF DATE DSCR DATE VALUE VALUE DATE OR BPO (F) DATE OFFERS COMMENTS
- -------- -------- -------- --------- ---------- --------- -------- -------- ----------- ----------- -------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Real Estate Owned
</TABLE>
EXHIBIT I-6
FORM OF SERVICER WATCH LIST
Credit Suisse First Boston Mortgage Securities Corp., Series 1997-C2
SERVICER WATCH LIST
as of __________________
<TABLE>
<CAPTION>
CURRENT PAID %
LOAN SCHED THRU MATURITY CURRENT
NUMBER PROPERTY TYPE CITY STATE BALANCE DATE DATE DSC COMMENT/REASON ON WATCH LIST
- ------ ------------- ---- ----- --------- ----- --------- -------- ------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
List all loans on watch list and reason sorted in descending balance order.
Total: $
</TABLE>
FORM I-7
FORM OF OPERATING STATEMENT ANALYSIS REPORT
Credit Suisse First Boston Mortgage Securities Corp., Series 1997-C2
OPERATING STATEMENT ANALYSIS REPORT
as of ______________
<TABLE>
<CAPTION>
<S> <C>
PROPERTY OVERVIEW
----------------
CSFB Control Number | |
------------------------------
Current Balance/Paid to Date | |
-------------------------------------------------------------------------------------------------
Property Name | |
-------------------------------------------------------------------------------------------------
Property Type | |
-------------------------------------------------------------------------------------------------
Property Address, City, State | |
-------------------------------------------------------------------------------------------------
Net Rentable Square Feet | |
------------------------------
Year Built/Year Renovated | |
-------------------------------------------------------------------------
Year of Operations | UNDERWRITING | 1993 | 1994 | 1995 | YTD |
-------------------------------------------------------------------------
Occupancy Rate* | | | | | |
-------------------------------------------------------------------------
Average Rental Rate | | | | | |
-------------------------------------------------------------------------
* OCCUPANCY RATES ARE YEAR END OR THE ENDING DATE OF THE FINANCIAL
STATEMENT FOR THE PERIOD.
INCOME:
NO. OF MOS.
-------------
Number of Mos. Annualized PRIOR YEAR CURRENT YR. | |
-------------------------------------------------------------------------------------------------
Period Ended | UNDERWRITING | 1993 | 1994 | 1995 | 1996 YTD** | 1995-BASE | 1995-1994 |
Statement Classification | BASE LINE | NORMALIZED | NORMALIZED | NORMALIZED | AS OF / /96 | VARIANCE | VARIANCE |
-------------------------------------------------------------------------------------------------
Rental Income (Category 1) | | | | | | | |
-------------------------------------------------------------------------------------------------
Rental Income (Category 2) | | | | | | | |
-------------------------------------------------------------------------------------------------
Rental Income (Category 3) | | | | | | | |
-------------------------------------------------------------------------------------------------
Pass Through/Escalations | | | | | | | |
-------------------------------------------------------------------------------------------------
Other Income | | | | | | | |
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
EFFECTIVE GROSS INCOME | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | % | % |
-------------------------------------------------------------------------------------------------
Normalized - Full year Financial statements that have been reviewed by the underwriter or
Servicer
** Servicer wil not be expected to "Normalize" these YTD numbers.
OPERATING EXPENSES:
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Real Estate Taxes | | | | | | | |
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Property Insurance | | | | | | | |
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Utilities | | | | | | | |
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Repairs and Maintenance | | | | | | | |
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Management Fees | | | | | | | |
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Payroll & Benefits Expense | | | | | | | |
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Advertising & Marketing | | | | | | | |
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Professional Fees | | | | | | | |
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Other Expenses | | | | | | | |
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Ground Rent | | | | | | | |
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TOTAL OPERATING EXPENSES | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | % | % |
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OPERATING EXPENSE RATIO | | | | | | | |
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NET OPERATING INCOME | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | | |
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<PAGE>
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Leasing Commissions | | | | | | | |
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Tenant Improvements | | | | | | | |
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Replacement Reserve | | | | | | | |
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TOTAL CAPITAL ITEMS | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | | $0.00 |
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NOI AFTER CAPITAL ITEMS | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | | |
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DEBT SERVICE (PER SERVICER) | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | | |
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CASH FLOW AFTER DEBT SERVICE | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | | |
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(1) DSCR: (NOI/DEBT SERVICE) | | | | | | | |
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DSCR: (AFTER RESERVES/CAP EXP.) | | | | | | | |
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SOURCE OF FINANCIAL DATA: | |
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(i.e. operating statements, financial statements, tax
return, other)
</TABLE>
NOTES AND ASSUMPTIONS:
- -----------------------------------------------------------------------------
The years shown above will roll always showing a three year history. 1995 is
the current year financials; 1994 is the prior year financials.
This report may vary depending on the property type and because of the way
information may vary in each borrower's statement.
Rental Income need to be broken down whenever possible differently for each
property type as follows: Retail: 1) Base Rent 2) Percentage rents on cashflow
Hotel: 1) Room Revenue 2) Food/Beverage Nursing Home: 1) Private 2) Medicaid 3)
Medicare
INCOME: COMMENT
EXPENSE: COMMENT
CAPITAL ITEMS: COMMENT
EXHIBIT J
(RESERVED)
EXHIBIT K
FORM OF LOST NOTE AFFIDAVIT
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
___________________________, ____________________, being duly sworn,
deposes and says:
1. that he is an authorized signatory of Credit Suisse First Boston
Mortgage Capital LLC ("CSFB");
2. that CSFB is the owner and holder of a mortgage loan in the original
principal amount of $__________ secured by a mortgage (the "Mortgage") on the
premises known as __________ __________ located in __________;
3. (a) that CSFB, after having conducted a diligent investigation of
its records and files, has been unable to locate the following original note
and believes that said original Note has been lost, misfiled, misplaced or
destroyed due to a clerical error:
a Note in the original sum of $__________ made by __________, to
CS First Boston Mortgage Capital Corp., under date of __________
(the "Note");
4. that the note is now owned and held by CSFB;
5. that the Note has not been paid off, satisfied, assigned,
transferred, encumbered, endorsed, pledged, hypothecated, or otherwise
disposed of and that the original Note has been either lost, misfiled,
misplaced or destroyed;
6. that no other person, firm, corporation or other entity has any
right, title, interest or claim in the Note except CSFB;
7. upon assignment of the Note by CSFB to Credit Suisse First Boston
Mortgage Securities Corp. (the "Depositor") and subsequent assignment by
Depositor to the trustee for the Benefit of the Holders of Credit Suisse
First Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through
Certificates, Series 1997-C2 (the "Trustee") (which assignment may, at the
discretion of the Depositor, be made directly by CSFB to the Trustee) CSFB
covenants and agrees (a) promptly to deliver to the Trustee the original Note
if it is subsequently found, and (b) to indemnify and hold harmless the
Trustee and its successors and assigns from and against any and all costs,
expenses and monetary losses arising as a result of CSFB's or the Depositor's
failure to deliver said original Note to the Trustee.
CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL LLC
By:_______________________
Authorized Signatory
Sworn to before me this
_____ day of ________.
EXHIBIT L
YIELD PROTECTION PAYMENT PERCENTAGES
FOR CLASS A-X CERTIFICATES
<TABLE>
<CAPTION>
Distribution Date Stone Mountain Totowa Holiday Inn Market Post Tower
<S> <C> <C> <C>
1/17/98 10.04% 26.32%
2/17/98 9.95% 26.07%
3/17/98 9.92% 16.74% 25.91%
4/17/98 9.83% 25.65%
5/17/98 9.76%
6/17/98 16.29%
7/17/98
8/17/98
9/17/98 15.84%
</TABLE>
A blank entry for a given Loan and Distribution Date indicates that no Yield
Protection Payment percentage is applicable for such Loan for such
Distribution Date.
EXHIBIT M
FORM OF DRAW REQUEST FROM CVS INTERIM SERVICING AGREEMENT
[On file with the Depositor]
EXHIBIT N
FORM OF CONSTRUCTION LOAN ACCOUNTING REPORTS PURSUANT TO SECTION 3.25(U)
[On file with the Depositor]
